Company Equityholder Representative. (a) To facilitate the administration of the transactions contemplated by this Agreement and the Escrow Agreement, including the resolution of any disputes relating to claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, the Company Equityholders, by the terms of this Agreement and their execution and delivery, as applicable, of the Written Consent, the Letter of Transmittal, an Option Surrender Agreement and/or a Warrant Surrender Agreement, hereby (i) designate the Company Equityholder Representative as their representative, attorney-in-fact and agent, (ii) authorize the Company Equityholder Representative to receive the Company Equityholder Representative Expense Amount and make payments from the Company Equityholder Representative Expense Amount and (iii) authorize the Company Equityholder Representative to give and receive all notices required to be given under this Agreement and the Escrow Agreement, to negotiate, resolve and settle any disputes or claims regarding the Closing Net Working Capital, achievement of the Milestones, the determination of the Milestone Payment and any claims for indemnification under Article VII, and to take any and all additional action as is contemplated to be taken by or on their (or any of their) behalf or by the Company Equityholder Representative by the terms of this Agreement and/or the Escrow Agreement. All such actions shall be deemed to be facts ascertainable outside this Agreement and shall be binding on the Company Equityholders. (b) In the event that Xxxxx X. Xxxxxxxx becomes unable to perform the Company Equityholder Representative’s responsibilities hereunder or resigns from such position, the position of Company Equityholder Representative shall thereafter be filled by a majority in interest of the Company Equityholders, voting together as a single class on an as-converted basis, and such substituted representative shall be deemed to be the Company Equityholder Representative for all purposes of this Agreement and the Escrow Agreement and the documents delivered pursuant hereto or thereto. (c) Upon any replacement of the Company Equityholder Representative, the Company Equityholder Representative being replaced shall transfer, or shall deem to transfer, to the new Company Equityholder Representative the balance of any unexpended Company Equityholder Representative Expense Amount. (d) All decisions and actions by the Company Equityholder Representative in connection with the transactions contemplated by this Agreement or the Escrow Agreement, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital or any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, shall be binding upon each Company Equityholder, and no Company Equityholder shall have the right to object, dissent, protest or otherwise contest the same. (e) Any decision, act, consent, waiver or instruction of the Company Equityholder Representative in connection with this Agreement or the Escrow Agreement shall constitute a decision of all the Company Equityholders and shall be final, binding and conclusive upon each Company Equityholder, and the Buyer and the Surviving Corporation shall be entitled to rely conclusively on the decisions, acts, consents, waivers and instructions of the Company Equityholder Representative as to any determination relating to the transactions contemplated by this Agreement or the Escrow Agreement as being the decision, act, consent, waiver or instruction of every Company Equityholder, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital, any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII, the disbursement of all or any portion of the General Escrow Fund or the Adjustment Escrow Fund and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, all of which shall be final, conclusive and binding upon each Company Equityholder; no Person shall have any cause of action against the Buyer, the Surviving Corporation, or any of their respective directors, officers, employees, agents or Affiliates for any action taken by the Buyer or the Surviving Corporation in reliance upon any decision, act, consent, waiver or instruction of the Company Equityholder Representative; and the Buyer and the Surviving Corporation are each hereby relieved from any liability to any Person for any acts done by it in accordance with such decision, act, consent, waiver or instruction of the Company Equityholder Representative. (f) None of the Buyer, the Surviving Corporation or any Company Equityholder shall have any cause of action against the Company Equityholder Representative for any action taken, decision made or instruction given by the Company Equityholder Representative under this Agreement or the Escrow Agreement, except in cases of Fraud, gross negligence or bad faith. (g) The provisions of this Section 1.11 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that the Buyer or any Company Equityholder may have in connection with the transactions contemplated by this Agreement or the Escrow Agreement. (h) The Company Equityholders shall, in accordance with their Pro Rata Share, severally, but not jointly, indemnify and reimburse the Company Equityholder Representative for any reasonable expense incurred without Fraud, gross negligence or bad faith on the part of the Company Equityholder Representative and arising out of or in connection with the acceptance or administration of its duties hereunder (“Representative Reimbursable Expenses”). Any such claim for indemnification shall be satisfied first from any then available portion of the remaining Company Equityholder Representative Expense Amount and, if such amount is insufficient to satisfy any such Representative Reimbursable Expense, from the first proceeds from any Future Payments otherwise available for distribution to the Company Equityholders. Without limiting the foregoing, the Company Equityholder Representative shall have the right to engage legal counsel and other professional advisers to assist it in the administration of Company Equityholder Representative’s duties hereunder, and any and all reasonable fees and expenses of such counsel and advisers shall be deemed Representative Reimbursable Expenses. In no event shall the Buyer or the Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse the Company Equityholder Representative for any costs or expenses of the Company Equityholder Representative, whether or not such costs or expenses constitute Representative Reimbursable Expenses. (i) At the Effective Time, the Buyer shall (in accordance with Section 1.3(d)(v)) pay the Company Equityholder Representative Expense Amount to the Company Equityholder Representative, which Company Equityholder Representative Expense Amount shall be maintained by the Company Equityholder Representative in a segregated account. Upon the determination of the Company Equityholder Representative that retaining any portion of the Company Equityholder Representative Expense Amount is no longer necessary, the Company Equityholder Representative shall deliver any then remaining portion of the Company Equityholder Representative Expense Amount (the “Company Equityholder Representative Account Payment”) to the Buyer for further payment in accordance with the Allocation Schedule.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Merger Agreement (Amag Pharmaceuticals Inc.)
Company Equityholder Representative. (a) To facilitate the administration By their execution of the transactions contemplated by this Agreement and the Escrow Agreement, including the resolution of any disputes relating to claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, the Company Equityholders, by the terms of this Agreement and their execution and delivery, as applicable, of the Written Consent, the Letter of Transmittal, an Option Surrender approval of the Merger and adoption of this Agreement and/or a Warrant Surrender their acceptance of any consideration pursuant to this Agreement, the Company Equityholders hereby irrevocably (isubject only to Section 2.4(e)) designate appoint the Company Equityholder Representative as their the representative, attorney-in-fact and agentagent of the Company Equityholders in connection with the transactions contemplated by this Agreement and in any litigation or arbitration involving this Agreement. In connection therewith, (ii) authorize the Company Equityholder Representative is authorized to receive do or refrain from doing all further acts and things, and to execute all such documents as the Company Equityholder Representative Expense Amount shall deem necessary or appropriate, and make payments from shall have the power and authority to:
(i) act for some or all of the Company Equityholders with regard to all matters pertaining to this Agreement and any agreements ancillary hereto;
(ii) act for the Company Equityholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Company Equityholder Representative Expense Amount deems necessary or appropriate in connection with the distribution of the Aggregate Consideration by the Transfer Agent, including delivering any update to or correction, amendment or modification of the Allocation Schedule permitted by Section 2.5(a);
(iv) receive funds, make payments of funds, and give receipts for funds;
(iiiv) authorize do or refrain from doing, on behalf of the Company Equityholders, any further act or deed that the Company Equityholder Representative deems necessary or appropriate in the Company Equityholder Representative’s discretion relating to any agreement that may be required by the Transfer Agent in connection with the distribution of the Aggregate Consideration to the Company Equityholders, in each case as fully and completely as the Company Equityholders could do if personally present;
(vi) give and receive all notices required to be given or received by the Company Equityholders under this Agreement and any agreements ancillary hereto;
(vii) give any written direction to the Escrow Agreement, to negotiate, resolve and settle any disputes or claims regarding the Closing Net Working Capital, achievement Transfer Agent on behalf of the MilestonesCompany Equityholders; and
(viii) receive service of process in connection with any claims under this Agreement and any agreements ancillary hereto, including any agreement that may be required by the determination Transfer Agent in connection with the distribution of the Milestone Payment Aggregate Consideration to the Company Equityholders.
(b) All decisions and any claims for indemnification under Article VII, and to take any and all additional action as is contemplated to be taken by or on their (or any actions of their) behalf or by the Company Equityholder Representative by on behalf of the terms of this Agreement and/or the Escrow Agreement. All such actions Company Equityholders shall be deemed to be facts ascertainable outside of this Agreement and shall be binding on the upon all Company Equityholders.
(b) In the event that Xxxxx X. Xxxxxxxx becomes unable to perform the Company Equityholder Representative’s responsibilities hereunder or resigns from such position, the position of Company Equityholder Representative shall thereafter be filled by a majority in interest of the Company Equityholders, voting together as a single class on an as-converted basis, and such substituted representative shall be deemed to be the Company Equityholder Representative for all purposes of this Agreement and the Escrow Agreement and the documents delivered pursuant hereto or thereto.
(c) Upon any replacement of the Company Equityholder Representative, the Company Equityholder Representative being replaced shall transfer, or shall deem to transfer, to the new Company Equityholder Representative the balance of any unexpended Company Equityholder Representative Expense Amount.
(d) All decisions and actions by the Company Equityholder Representative in connection with the transactions contemplated by this Agreement or the Escrow Agreement, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital or any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, shall be binding upon each Company Equityholder, and no Company Equityholder shall have the right to object, dissent, protest or otherwise contest the same.
(ec) Any decision, act, consent, waiver or instruction The Company Equityholder Representative shall act for the Company Equityholders on all of the matters set forth in this Agreement in the manner the Company Equityholder Representative believes to be in connection with this Agreement or the Escrow Agreement shall constitute a decision best interest of all the Company Equityholders. The Company Equityholder Representative is authorized to act on behalf of the Company Equityholders and shall be finalnotwithstanding any dispute or disagreement among the Company Equityholders. In taking any action as Company Equityholder Representative, binding and conclusive upon each Company Equityholder, and the Buyer and the Surviving Corporation shall be entitled to rely conclusively on the decisions, acts, consents, waivers and instructions of the Company Equityholder Representative as may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person whom the Company Equityholder Representative reasonably believes to be authorized thereunto. The Company Equityholder Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Company Equityholder Representative shall not be liable to any determination relating to the transactions contemplated by this Agreement Company Equityholder for anything done, omitted or the Escrow Agreement as being the decision, act, consent, waiver or instruction of every Company Equityholder, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital, any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII, the disbursement of all or any portion of the General Escrow Fund or the Adjustment Escrow Fund and any other actions required or permitted to be taken suffered in good faith by the Company Equityholder Representative under based on such advice. The Company Equityholder Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or the Escrow Agreement, all of which obligations shall be final, conclusive and binding upon each Company Equityholder; no Person shall have any cause of action read into this Agreement against the Buyer, the Surviving Corporation, or any of their respective directors, officers, employees, agents or Affiliates for any action taken by the Buyer or the Surviving Corporation in reliance upon any decision, act, consent, waiver or instruction of the Company Equityholder Representative; and the Buyer and the Surviving Corporation are each hereby relieved from . The Company Equityholder Representative shall not have any liability to any Person for any acts done by it in accordance with such decision, act, consent, waiver or instruction of the Company Equityholder Representative.
(f) None of the Buyer, the Surviving Corporation Equityholders for any act done or any Company Equityholder shall have any cause of action against the omitted hereunder as Company Equityholder Representative for any action taken, decision made or instruction given while acting in good faith. The Company Equityholder Representative shall be indemnified by the Company Equityholder Representative under this Agreement Equityholders from and against any loss, liability or the Escrow Agreement, except in cases of Fraud, gross negligence or bad faith.
(g) The provisions of this Section 1.11 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that the Buyer or any Company Equityholder may have in connection with the transactions contemplated by this Agreement or the Escrow Agreement.
(h) The Company Equityholders shall, in accordance with their Pro Rata Share, severally, but not jointly, indemnify and reimburse the Company Equityholder Representative for any reasonable expense incurred without Fraud, gross negligence or bad in good faith on the part of by the Company Equityholder Representative and arising out of or in connection with the acceptance or administration of its the Company Equityholder Representative’s duties hereunder (“Representative Reimbursable Expenses”)hereunder. Any such claim for indemnification shall be satisfied first from by a claim against the Company Equityholders (with each Company Equityholder liable for the Pro Rata Share of any then available portion of such claim that is represented by such Company Equityholder’s Company Stock or Company SAFE).
(d) In the remaining event the Company Equityholder Representative Expense Amount andbecomes unable to perform the Company Equityholder Representative’s responsibilities hereunder or resigns from such position, the Company Equityholders (acting by a written instrument signed by holders of Company Stock who held, as of immediately prior to the Effective Time, a majority (by voting power) of the then outstanding shares of Company Stock) shall select another representative to fill the vacancy of the Company Equityholder Representative, and such substituted representative shall be deemed to be the Company Equityholder Representative for all purposes of this Agreement. The Company Equityholder Representative may be removed only upon delivery of written notice to Parent signed by Persons who, as of immediately prior to the Effective Time, held a majority (by voting power) of the then outstanding shares of Company Stock; provided that no such removal shall be effective until such time as a successor Company Equityholder Representative shall have been validly appointed hereunder. The Company Equityholder Representative shall provide Parent with prompt written notice of any replacement of the Company Equityholder Representative, including the identity and address of the new Company Equityholder Representative.
(e) The Company Equityholder Representative agrees not to, directly or indirectly, disclose the existence or terms of this Agreement or any other agreement contemplated hereby or any other information regarding this Agreement, the Merger or any of the other matters contemplated hereby, including information provided to the Company Equityholder Representative pursuant to the terms of this Agreement, except, in each case (i) to the extent such information is or becomes generally known to the public (other than as a result of a disclosure by the Company Equityholder Representative in breach of its obligations under this Section 2.4), (ii) if such amount is insufficient and to satisfy any such the extent required by applicable Law, (iii) to employees, advisors, agents or consultants of the Company Equityholder Representative Reimbursable Expense, from the first proceeds from any Future Payments otherwise available for distribution and to the Company Equityholders. Without limiting , in each case who have a need to know such information, and further provided that such persons are subject to confidentiality obligations with respect thereto, or (iv) in connection with, and only to the foregoingextent required for, enforcement of rights or defense of claims (including, in each case, on behalf of the Company Equityholders) under this Agreement and the transactions contemplated hereby and thereby.
(f) For all purposes of this Agreement:
(i) Parent shall be entitled to rely conclusively on the instructions and decisions of the Company Equityholder Representative as to the settlement of any disputes or claims under this Agreement or any agreements ancillary hereto or any other actions required or permitted to be taken by the Company Equityholder Representative hereunder, and no party hereunder or any Company Equityholder shall have any claim, cause of action, objection or complaint against Parent for any action taken by Parent in reliance upon the instructions or decisions of the Company Equityholder Representative;
(ii) except as specifically set forth herein, no Company Equityholder shall have any right to bring any claim, cause of action, objection or complaint except through the Company Equityholder Representative, and the Company Equityholder Representative shall have the right sole authority to engage legal counsel act for, and other professional advisers to assist it enforce the rights of, all Company Equityholders in connection with this Agreement and the administration transactions contemplated hereby;
(iii) the provisions of this Section 2.4 are independent and severable, are irrevocable (subject only to Section 2.4(e)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Equityholder Representative’s duties hereundermay have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 2.4 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Equityholder, and any and all reasonable fees and expenses of such counsel and advisers shall be deemed Representative Reimbursable Expenses. In no event shall the Buyer or the Surviving Corporation (or any of their respective Affiliates) be obligated references in this Agreement to reimburse the a Company Equityholder Representative for any costs or expenses shall mean and include the successors to the rights of the each applicable Company Equityholder Representativehereunder, whether or not such costs or expenses constitute Representative Reimbursable Expenses.
(i) At the Effective Timepursuant to testamentary disposition, the Buyer shall (in accordance with Section 1.3(d)(v)) pay the Company Equityholder Representative Expense Amount to the Company Equityholder Representative, which Company Equityholder Representative Expense Amount shall be maintained by the Company Equityholder Representative in a segregated account. Upon the determination Laws of the Company Equityholder Representative that retaining any portion of the Company Equityholder Representative Expense Amount is no longer necessary, the Company Equityholder Representative shall deliver any then remaining portion of the Company Equityholder Representative Expense Amount (the “Company Equityholder Representative Account Payment”) to the Buyer for further payment in accordance with the Allocation Scheduledescent and distribution or otherwise.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Eliem Therapeutics, Inc.)
Company Equityholder Representative. (a) To facilitate By their execution of this Agreement or the administration Letter of Transmittal, approval of the Merger and adoption of this Agreement and/or their acceptance of any consideration pursuant to this Agreement, the Company Equityholders hereby irrevocably (subject only to Section 2.4(e)) appoint the Company Equityholder Representative as the representative, attorney-in-fact and agent of the Company Equityholders in connection with the transactions contemplated by this Agreement and the Escrow Paying Agent Agreement and in any litigation or arbitration involving this Agreement or the Paying Agent Agreement. In connection therewith, including the resolution of any disputes relating to claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Company Equityholder Representative shall deem necessary or appropriate, and shall have the power and authority to:
(i) act for some or all of the Company Equityholders with regard to all matters pertaining to this Agreement or the Escrow Paying Agent Agreement;
(ii) act for the Company Equityholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Company Equityholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement or the Paying Agent Agreement, including delivering any update to or correction, amendment or modification of the Allocation Schedule permitted by Section 2.7(a);
(iv) receive funds, make payments of funds, and give receipts for funds;
(v) do or refrain from doing, on behalf of the Company Equityholders, by the terms of this Agreement and their execution and delivery, as applicable, of the Written Consent, the Letter of Transmittal, an Option Surrender Agreement and/or a Warrant Surrender Agreement, hereby (i) designate any further act or deed that the Company Equityholder Representative as their representative, attorney-in-fact and agent, (ii) authorize deems necessary or appropriate in the Company Equityholder Representative Representative’s discretion relating to receive the subject matter of this Agreement or the Paying Agent Agreement, in each case as fully and completely as the Company Equityholder Representative Expense Amount and make payments from the Company Equityholder Representative Expense Amount and Equityholders could do if personally present;
(iiivi) authorize the Company Equityholder Representative to give and receive all notices required to be given or received by the Company Equityholders under this Agreement and or the Escrow AgreementPaying Agent;
(vii) give any written direction to the Paying Agent;
(viii) agree to, to negotiate, resolve and settle any disputes or claims regarding the Closing Net Working Capital, achievement of the Milestones, negotiate and/or comply with the determination of the Milestone Payment actual Company Transaction Expenses pursuant to Section 2.6;
(ix) agree to, negotiate, enter into settlements, releases and any compromises and/or comply with arbitration awards and court orders with respect to claims for indemnification made by the Buyer under Article VII, VIII and to take other disputes hereunder; and
(x) receive service of process in connection with any claims under this Agreement and/or the Paying Agent Agreement.
(b) All decisions and all additional action as is contemplated to be taken by or on their (or any actions of their) behalf or by the Company Equityholder Representative by on behalf of the terms of this Agreement and/or the Escrow Agreement. All such actions Company Equityholders shall be deemed to be facts ascertainable outside of this Agreement and shall be binding on the upon all Company Equityholders.
(b) In the event that Xxxxx X. Xxxxxxxx becomes unable to perform the Company Equityholder Representative’s responsibilities hereunder or resigns from such position, the position of Company Equityholder Representative shall thereafter be filled by a majority in interest of the Company Equityholders, voting together as a single class on an as-converted basis, and such substituted representative shall be deemed to be the Company Equityholder Representative for all purposes of this Agreement and the Escrow Agreement and the documents delivered pursuant hereto or thereto.
(c) Upon any replacement of the Company Equityholder Representative, the Company Equityholder Representative being replaced shall transfer, or shall deem to transfer, to the new Company Equityholder Representative the balance of any unexpended Company Equityholder Representative Expense Amount.
(d) All decisions and actions by the Company Equityholder Representative in connection with the transactions contemplated by this Agreement or the Escrow Agreement, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital or any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, shall be binding upon each Company Equityholder, and no Company Equityholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) Any decision, act, consent, waiver or instruction of the Company Equityholder Representative in connection with this Agreement or the Escrow Agreement shall constitute a decision of all the Company Equityholders and shall be final, binding and conclusive upon each Company Equityholder, and the Buyer and the Surviving Corporation shall be entitled to rely conclusively on the decisions, acts, consents, waivers and instructions of the Company Equityholder Representative as to any determination relating to the transactions contemplated by this Agreement or the Escrow Agreement as being the decision, act, consent, waiver or instruction of every Company Equityholder, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital, any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII, the disbursement of all or any portion of the General Escrow Fund or the Adjustment Escrow Fund and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, all of which shall be final, conclusive and binding upon each Company Equityholder; no Person shall have any cause of action against the Buyer, the Surviving Corporation, or any of their respective directors, officers, employees, agents or Affiliates for any action taken by the Buyer or the Surviving Corporation in reliance upon any decision, act, consent, waiver or instruction of the Company Equityholder Representative; and the Buyer and the Surviving Corporation are each hereby relieved from any liability to any Person for any acts done by it in accordance with such decision, act, consent, waiver or instruction of the Company Equityholder Representative.
(f) None of the Buyer, the Surviving Corporation or any Company Equityholder shall have any cause of action against the Company Equityholder Representative for any action taken, decision made or instruction given by the Company Equityholder Representative under this Agreement or the Escrow Agreement, except in cases of Fraud, gross negligence or bad faith.
(gc) The provisions of this Section 1.11 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that the Buyer or any Company Equityholder may have in connection with the transactions contemplated by this Agreement or the Escrow Agreement.
(h) The Company Equityholders shall, in accordance with their Pro Rata Share, severally, but not jointly, indemnify and reimburse the Company Equityholder Representative for any reasonable expense incurred without Fraud, gross negligence or bad faith on the part of the Company Equityholder Representative and arising out of or in connection with the acceptance or administration of its duties hereunder (“Representative Reimbursable Expenses”). Any such claim for indemnification shall be satisfied first from any then available portion of the remaining Company Equityholder Representative Expense Amount and, if such amount is insufficient to satisfy any such Representative Reimbursable Expense, from the first proceeds from any Future Payments otherwise available for distribution to the Company Equityholders. Without limiting the foregoing, the Company Equityholder Representative shall have the right not be paid any fee for services to engage legal counsel and other professional advisers to assist it in the administration of Company Equityholder Representative’s duties be rendered hereunder, and any and all reasonable fees and expenses of such counsel and advisers shall be deemed Representative Reimbursable Expenses. In no event shall the Buyer or the Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse the Company Equityholder Representative for any costs expenses incurred by the Company Equityholder Representative.
(d) The Company Equityholder Representative shall act for the Company Equityholders on all of the matters set forth in this Agreement and the Paying Agent Agreement in the manner the Company Equityholder Representative believes to be in the best interest of the Company Equityholders. The Company Equityholder Representative is authorized to act on behalf of the Company Equityholders notwithstanding any dispute or expenses disagreement among the Company Equityholders. In taking any action as Company Equityholder Representative, the Company Equityholder Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person whom the Company Equityholder Representative reasonably believes to be authorized thereunto. The Company Equityholder Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Company Equityholder Representative shall not be liable to any Company Equityholder for anything done, omitted or suffered in good faith by the Company Equityholder Representative based on such advice. The Company Equityholder Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Company Equityholder Representative. The Company Equityholder Representative shall not have any liability to any of the Company Equityholders for any act done or omitted hereunder as Company Equityholder Representative while acting in good faith. The Company Equityholder Representative shall be indemnified by the Company Equityholders from and against any loss, liability or expense incurred in good faith on the part of the Company Equityholder Representative and arising out of or in connection with the acceptance or administration of the Company Equityholder Representative’s duties hereunder.
(e) In the event the Company Equityholder Representative becomes unable to perform the Company Equityholder Representative’s responsibilities hereunder or resigns from such position, the Company Equityholders (acting by a written instrument signed by holders of Company Stock who held, as of immediately prior to the Effective Time, a majority (by voting power) of the then outstanding shares of Company Stock) shall select another representative to fill the vacancy of the Company Equityholder Representative, whether or not and such costs or expenses constitute substituted representative shall be deemed to be the Company Equityholder Representative Reimbursable Expenses.
(i) At for all purposes of this Agreement. The Company Equityholder Representative may be removed only upon delivery of written notice to the Buyer signed by Persons who, as of immediately prior to the Effective Time, held a majority (by voting power) of the Buyer then outstanding shares of Company Stock; provided that no such removal shall (in accordance with Section 1.3(d)(v)) pay the be effective until such time as a successor Company Equityholder Representative Expense Amount to shall have been validly appointed hereunder. The Company Equityholder Representative shall provide the Buyer prompt written notice of any replacement of the Company Equityholder Representative, which including the identity and address of the new Company Equityholder Representative.
(f) For all purposes of this Agreement:
(i) the Buyer shall be entitled to rely conclusively on the instructions and decisions of the Company Equityholder Representative Expense Amount shall as to the settlement of any disputes or claims under this Agreement, or any other actions required or permitted to be maintained taken by the Company Equityholder Representative hereunder, and no party hereunder or any Company Equityholder shall have any cause of action against the Buyer for any action taken by the Buyer in a segregated account. Upon reliance upon the determination instructions or decisions of the Company Equityholder Representative Representative;
(ii) the provisions of this Section 2.4 are independent and severable, are irrevocable (subject only to Section 2.4(e)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that retaining any portion of the Company Equityholder Representative Expense Amount is no longer necessarymay have in connection with the transactions contemplated by this Agreement; and
(iii) the provisions of this Section 2.4 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Equityholder, and any references in this Agreement to a Company Equityholder shall mean and include the successors to the rights of each applicable Company Equityholder hereunder, whether pursuant to testamentary disposition, the Company Equityholder Representative shall deliver any then remaining portion Laws of the Company Equityholder Representative Expense Amount (the “Company Equityholder Representative Account Payment”) to the Buyer for further payment in accordance with the Allocation Scheduledescent and distribution or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Bottomline Technologies Inc /De/)
Company Equityholder Representative. (a) To facilitate the administration By their execution of the transactions contemplated by Letter of Transmittal and/or Shareholder Support Agreements, approval of the Merger and adoption of this Agreement and the Escrow Agreement, including the resolution and/or their acceptance of any disputes relating to claims for indemnification consideration pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, the Company Equityholders, by the terms of this Agreement and their execution and delivery, as applicable, of the Written Consent, the Letter of Transmittal, an Option Surrender Agreement and/or a Warrant Surrender Agreement, Equityholders hereby irrevocably (isubject only to Section 2.4(f)) designate appoint the Company Equityholder Representative as their the representative, attorney-in-fact and agentagent of the Company Equityholders in connection with the transactions contemplated by this Agreement, (ii) authorize the Payments Administration Agreement and the Escrow Agreements and in any litigation or arbitration involving this Agreement, the Payments Administration Agreement or the Escrow Agreements. In connection therewith, the Company Equityholder Representative is authorized to receive do or refrain from doing all further acts and things, and to execute all such documents as the Company Equityholder Representative Expense Amount shall deem necessary or appropriate, and make payments from shall have the power and authority to:
(i) act for some or all of the Company Equityholders with regard to all matters pertaining to this Agreement, the Payments Administration Agreement or the Escrow Agreements;
(ii) act for the Company Equityholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents on behalf of Company Equityholders that the Company Equityholder Representative Expense Amount deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement, the Payments Administration Agreement or the Escrow Agreements, including delivering any update to or correction, amendment or modification of the Closing Date Allocation Schedule permitted by Section 2.7(a);
(iv) receive funds, make payments of funds, and give receipts for funds;
(iiiv) authorize do or refrain from doing, on behalf of the Company Equityholders, any further act or deed that the Company Equityholder Representative deems necessary or appropriate in the Company Equityholder Representative’s discretion relating to the subject matter of this Agreement, the Payments Administration Agreement or the Escrow Agreements, in each case as fully and completely as the Company Equityholders could do if personally present;
(vi) give and receive all notices required to be given or received by the Company Equityholders under this Agreement, the Payments Administration Agreement and or the Escrow AgreementAgreements;
(vii) give any written direction to the Payments Administrator or the Escrow Agent;
(viii) agree to, to negotiate, resolve and settle any disputes or claims regarding negotiate and/or comply with the determination of the Closing Net Working Capital, achievement Closing Cash, Closing Indebtedness, Company Transaction Expenses and the Final Purchase Price Adjustment pursuant to Section 2.6; and
(ix) receive service of the Milestonesprocess in connection with any claims under this Agreement, the determination Payments Administration Agreement and/or the Escrow Agreements.
(b) All decisions and actions of the Milestone Payment and any claims for indemnification under Article VII, and to take any and all additional action as is contemplated to be taken by or on their (or any of their) behalf or by the Company Equityholder Representative by on behalf of the terms of this Agreement and/or the Escrow Agreement. All such actions Company Equityholders shall be deemed to be facts ascertainable outside this of the Merger Agreement and shall be binding on the upon all Company Equityholders.
(b) In the event that Xxxxx X. Xxxxxxxx becomes unable to perform the Company Equityholder Representative’s responsibilities hereunder or resigns from such position, the position of Company Equityholder Representative shall thereafter be filled by a majority in interest of the Company Equityholders, voting together as a single class on an as-converted basis, and such substituted representative shall be deemed to be the Company Equityholder Representative for all purposes of this Agreement and the Escrow Agreement and the documents delivered pursuant hereto or thereto.
(c) Upon any replacement of the Company Equityholder Representative, the Company Equityholder Representative being replaced shall transfer, or shall deem to transfer, to the new Company Equityholder Representative the balance of any unexpended Company Equityholder Representative Expense Amount.
(d) All decisions and actions by the Company Equityholder Representative in connection with the transactions contemplated by this Agreement or the Escrow Agreement, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital or any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, shall be binding upon each Company Equityholder, and no Company Equityholder shall have the right to object, dissent, protest or otherwise contest the same.
(ec) Any decisionAt the Closing Date, act, consent, waiver or instruction of the Company Equityholder Representative in connection with this Agreement or the Escrow Agreement shall constitute a decision of all the Company Equityholders and shall be final, binding and conclusive upon each Company Equityholder, and the Buyer and shall pay the Surviving Corporation shall be entitled to rely conclusively on the decisions, acts, consents, waivers and instructions of the Company Equityholder Representative as to any determination relating to the transactions contemplated by this Agreement or the Escrow Agreement as being the decision, act, consent, waiver or instruction of every Company Equityholder, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital, any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII, the disbursement of all or any portion of the General Escrow Fund or the Adjustment Escrow Fund and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, all of which shall be final, conclusive and binding upon each Company Equityholder; no Person shall have any cause of action against the Buyer, the Surviving Corporation, or any of their respective directors, officers, employees, agents or Affiliates for any action taken by the Buyer or the Surviving Corporation in reliance upon any decision, act, consent, waiver or instruction of the Company Equityholder Representative; and the Buyer and the Surviving Corporation are each hereby relieved from any liability to any Person for any acts done by it in accordance with such decision, act, consent, waiver or instruction of the Company Equityholder Representative.
(f) None of the Buyer, the Surviving Corporation or any Company Equityholder shall have any cause of action against the Company Equityholder Representative for any action taken, decision made or instruction given by the Company Equityholder Representative under this Agreement or the Escrow Agreement, except in cases of Fraud, gross negligence or bad faith.
(g) The provisions of this Section 1.11 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that the Buyer or any Company Equityholder may have in connection with the transactions contemplated by this Agreement or the Escrow Agreement.
(h) The Company Equityholders shall, in accordance with their Pro Rata Share, severally, but not jointly, indemnify and reimburse the Company Equityholder Representative for any reasonable expense incurred without Fraud, gross negligence or bad faith on the part of the Company Equityholder Representative and arising out of or in connection with the acceptance or administration of its duties hereunder (“Representative Reimbursable Expenses”). Any such claim for indemnification shall be satisfied first from any then available portion of the remaining Company Equityholder Representative Expense Amount and, if such amount is insufficient to satisfy any such Representative Reimbursable Expense, from the first proceeds from any Future Payments otherwise available for distribution to the Company EquityholdersPayments Administrator. Without limiting the foregoing, the Company Equityholder Representative shall have the right to engage legal counsel and other professional advisers to assist it in the administration of Company Equityholder Representative’s duties hereunder, and any and all reasonable fees and expenses of such counsel and advisers shall be deemed Representative Reimbursable Expenses. In no event shall the Buyer or the Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse the Company Equityholder Representative for any costs or expenses of the Company Equityholder Representative, whether or not such costs or expenses constitute Representative Reimbursable Expenses.
(i) At Immediately following the Effective Time, the Buyer Payments Administrator shall (in accordance with Section 1.3(d)(v)) pay the Company Equityholder Representative Expense Amount to the Company Equityholder Representative, which Company Equityholder Representative Expense Amount shall be maintained by the Company Equityholder Representative in a segregated accountclient account separate from the Company Equityholder Representative’s corporate funds. The Company Equityholder Representative shall not use these funds for its operating expenses or any other corporate purposes and shall not voluntarily make these funds available to its creditors in the event of bankruptcy. The Company Equityholders shall not receive any interest or earnings on the Company Equityholder Representative Expense Amount and irrevocably transfer and assign to the Company Equityholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Company Equityholder Representative shall not be liable for any loss of principal of the Company Equityholder Representative Expense Amount other than as a result of its gross negligence or willful misconduct. For Tax purposes, the Company Equityholder Representative Expense Amount shall be treated as having been received and voluntarily set aside by the Company Equityholders at the time of Closing. The Company Equityholder Representative shall be reimbursed for reasonable out-of-pocket expenses incurred in the performance of the Company Equityholder Representative’s duties (including the reasonable fees and expenses of counsel) under this Agreement from the Company Equityholder Representative Expense Amount and, if the remaining Company Equityholder Representative Expense Amount is insufficient to pay such expenses, from the first proceeds from Future Payments otherwise available for distribution to the Company Equityholders. Upon the determination of the Company Equityholder Representative that retaining any portion of the Company Equityholder Representative Expense Amount is no longer necessary, the Company Equityholder Representative shall deliver any then remaining portion of the Company Equityholder Representative Expense Amount (the “Company Equityholder Representative Account Payment”) to the Buyer, which shall promptly pay (i) a portion thereof equal to the Pro Rata Share that is represented by each share of Company Stock converted pursuant to Sections 2.1(c)(i)(Y), 2.1(c)(ii)(Y) or 2.1(c)(iii) to the Payments Administrator for payment to the holder thereof and (ii) a portion thereof equal to the Pro Rata Share that is represented by each Company Equity Award to the Surviving Corporation for payment to the holder thereof (which amount shall be paid by the Surviving Corporation to such holder with the first payroll payment after the Surviving Corporation’s receipt of such amount and shall be subject to any applicable withholding as provided in Section 2.8). The Company Equityholder Representative Expense Amount shall not be used for any other purpose and shall not be available to the Buyer for further payment to satisfy any claims hereunder. For the avoidance of doubt, the Buyer shall (in accordance with the Closing Date Allocation Schedule) cause (A) the Surviving Corporation to use any funds distributed to the Surviving Corporation pursuant to this Section 2.4(c) and (B) the Payments Administrator to use any funds distributed to the Payments Administrator pursuant to this Section 2.4(c) to make the payments provided for in this Section 2.4(c), and such funds shall not be used for any other purpose except as provided in this Agreement.
(d) The Company Equityholder Representative shall act for the Company Equityholders on all of the matters set forth in this Agreement, the Payments Administration Agreement and the Escrow Agreements in the manner the Company Equityholder Representative believes to be in the best interest of the Company Equityholders. The Company Equityholder Representative is authorized to act on behalf of the Company Equityholders notwithstanding any dispute or disagreement among the Company Equityholders. In taking any action as Company Equityholder Representative, the Company Equityholder Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person whom the Company Equityholder Representative reasonably believes to be authorized thereunto. The Company Equityholder Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Company Equityholder Representative shall not be liable to any of the parties hereto or to any Company Equityholder for anything done, omitted or suffered in good faith by the Company Equityholder Representative based on such advice. The Company Equityholder Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Company Equityholder Representative. The Company Equityholder Representative shall not have any Liability to any of the parties hereto or the Company Equityholders for any act done or omitted hereunder as Company Equityholder Representative while acting in good faith. The Company Equityholder Representative shall be indemnified by the Company Equityholders from and against any loss, liability, expense, damage, claim, penalty, fine, forfeiture, action, fee or costs (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 acceptance or administration of the Company Equityholder Representative’s duties hereunder and under any agreement 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 bad faith, gross negligence or willful misconduct of the Company Equityholder Representative, the Company Equityholder Representative shall reimburse the Company Equityholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Any such Representative Losses shall be recovered by the Company Equityholder Representative first from any then available portion of the remaining Company Equityholder Representative Expense Amount and, if such amount is insufficient to satisfy any such Representative Loss, from the first proceeds from Future Payments otherwise available for distribution to the Company Equityholders or from the Company Equityholders; provided, that while this Section 2.4(d) provides for the Company Equityholder Representative to be paid from the Company Equityholder Representative Expense Amount and any Future Payments, this does not relieve the Company Equityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred to the extent the Company Equityholder Representative Expense Amount is insufficient for the Representative Loss to be fully recovered, nor does it prevent the Company Equityholder Representative from seeking any remedies available to it at law or otherwise. In no event shall the Company Equityholder Representative be required to advance its own funds on behalf of the Company Equityholders 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 Company Equityholder Representative under this Section 2.4. The foregoing indemnities shall survive the Closing, the resignation or removal of the Company Equityholder Representative or the termination of this Agreement.
(e) The Company Equityholder Representative shall have reasonable access to relevant information about the Company and the Buyer and the reasonable assistance of the Company’s and the Buyer’s employees for purposes of performing the Company Equityholder Representative’s duties and exercising the Company Equityholder Representative’s rights hereunder; provided, that the Company Equityholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Company to anyone except (i) in connection with any disputes arising out of or in connection with this Agreement and (ii) as required by law or to employees, advisors, agents or consultants of the Company Equityholder Representative and to the Company Equityholders, in each case who have a need to know such information, provided that such persons either (A) agree to observe the terms of this Section 2.4(e) or (B) are bound by obligations of confidentiality to the Company Equityholder Representative of at least as high a standard as those imposed on the Company Equityholder Representative under this Section 2.4(e).
(f) In the event the Company Equityholder Representative becomes unable to perform the Company Equityholder Representative’s responsibilities hereunder or resigns from such position, the Company Equityholders (acting by a written instrument signed by holders of Company Stock who held, as of immediately prior to the Effective Time, a majority (by voting power) of the then outstanding shares of Company Stock) shall select another representative to fill the vacancy of the Company Equityholder Representative, and such substituted representative shall be deemed to be the Company Equityholder Representative for all purposes of this Agreement. The Company Equityholder Representative may be removed only upon delivery of written notice to the Buyer signed by Persons who, as of immediately prior to the Effective Time, held a majority (by voting power) of the then outstanding shares of Company Stock.
(g) For all purposes of this Agreement:
(i) the Buyer shall be entitled to rely conclusively on the instructions and decisions of the Company Equityholder Representative as to the settlement of any disputes or claims under this Agreement, or any other actions required or permitted to be taken by the Company Equityholder Representative hereunder, and no party hereunder or any Company Equityholder shall have any cause of action against the Buyer for any action taken by the Buyer in reliance upon the instructions or decisions of the Company Equityholder Representative;
(ii) the provisions of this Section 2.4 are independent and severable, are irrevocable (subject only to Section 2.4(f)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Equityholder may have in connection with the transactions contemplated by this Agreement; and
(iii) the provisions of this Section 2.4 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Equityholder, and any references in this Agreement to a Company Equityholder shall mean and include the successors to the rights of each applicable Company Equityholder hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Crane Co /De/)
Company Equityholder Representative. (a) To facilitate the administration By their execution of the transactions contemplated by this Agreement and the Escrow Agreement, including the resolution of any disputes relating to claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, the Company Equityholders, by the terms of this Agreement and their execution and delivery, as applicable, of the Written Consent, the Letter of Transmittal, an Option Surrender approval of the Merger and adoption of this Agreement and/or a Warrant Surrender their acceptance of any consideration pursuant to this Agreement, the Company Equityholders hereby irrevocably (isubject only to Section 2.4(e)) designate appoint the Company Equityholder Representative as their the representative, attorney-in-fact and agentagent of the Company Equityholders in connection with the transactions contemplated by this Agreement, (ii) authorize the Exchange and Paying Agent Agreement, the Company Equityholder Representative to receive Engagement Agreement or any other agreement contemplated hereby or thereby, and in any litigation or arbitration involving this Agreement or the Exchange and Paying Agent Agreement, or any other agreement contemplated hereby or thereby. In connection therewith, the Company Equityholder Representative Expense Amount is authorized to do or refrain from doing all further acts and make payments from things, and to execute all such documents as the Company Equityholder Representative Expense Amount shall deem necessary or appropriate, and shall have the power and authority to:
(iiii) authorize act for some or all of the Company Equityholders with regard to all matters pertaining to this Agreement, the Exchange and Paying Agent Agreement, the Company Equityholder Representative Engagement Agreement or any other agreement contemplated hereby or thereby;
(ii) act for the Company Equityholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Company Equityholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement, the Exchange and Paying Agent Agreement, or any other agreement contemplated hereby or thereby including delivering any update to or correction, amendment or modification of the Allocation Schedule permitted by Section 2.7(a);
(iv) receive funds, make payments of funds, and give receipts for funds;
(v) do or refrain from doing, on behalf of the Company Equityholders, any further act or deed that the Company Equityholder Representative deems necessary or appropriate in the Company Equityholder Representative’s discretion relating to the subject matter of this Agreement, the Exchange and Paying Agent Agreement, the Company Equityholder Representative Engagement Agreement or any other agreement contemplated hereby or thereby, in each case as fully and completely as the Company Equityholders could do if personally present;
(vi) give and receive all notices required to be given or received by the Company Equityholders under this Agreement and the Escrow Agreement, the Exchange and Paying Agent Agreement, or any other agreement contemplated hereby or thereby;
(vii) give any written direction to negotiate, resolve the Exchange and settle any disputes or claims regarding the Closing Net Working Capital, achievement Paying Agent on behalf of the MilestonesCompany Equityholders;
(viii) agree to, negotiate and/or comply with the determination of the Milestone Payment Final Closing Adjustment Statement, the Final Closing Adjustment Items and the Final Closing Adjustment pursuant to Section 2.6, and to agree to, negotiate, comply with and/or enter into any modification or amendment of (subject only to the requirements of the DGCL), or any settlement and compromises regarding any Contingent Consideration or the Buyer or the Surviving Entity’s obligations pursuant to, Section 2.8;
(ix) agree to, negotiate, enter into settlements and compromises and/or comply with arbitration awards and court orders with respect to claims for indemnification made by the Buyer under Article VIIV;
(x) receive service of process in connection with any claims under this Agreement, the Exchange and to take any and all additional action as is contemplated to be taken by or on their (Paying Agent Agreement, or any other agreement contemplated hereby or thereby; and
(xi) engage attorneys, accountants, financial and other advisors, paying agents and other Persons necessary or appropriate in the judgment of their) behalf or by the Company Equityholder Representative by for the terms accomplishment of this Agreement and/or the Escrow Agreement. foregoing, in each case solely at the expense of the Company Equityholder Representative (on behalf of the Company Equityholders and paid from the Company Equityholder Representative Expense Amount).
(b) All such decisions and actions of the Company Equityholder Representative on behalf of the Company Equityholders shall be deemed to be facts ascertainable outside of this Agreement and shall be binding on the upon all Company Equityholders.
(b) In the event that Xxxxx X. Xxxxxxxx becomes unable to perform the Company Equityholder Representative’s responsibilities hereunder or resigns from such position, the position of Company Equityholder Representative shall thereafter be filled by a majority in interest of the Company Equityholders, voting together as a single class on an as-converted basis, Equityholders and such substituted representative shall be deemed to be the Company Equityholder Representative for all purposes of this Agreement and the Escrow Agreement and the documents delivered pursuant hereto or thereto.
(c) Upon any replacement of the Company Equityholder Representative, the Company Equityholder Representative being replaced shall transfer, or shall deem to transfer, to the new Company Equityholder Representative the balance of any unexpended Company Equityholder Representative Expense Amount.
(d) All decisions and actions by the Company Equityholder Representative in connection with the transactions contemplated by this Agreement or the Escrow Agreement, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital or any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, shall be binding upon each Company Equityholdertheir respective successors, and no Company Equityholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) Any decision, act, consent, waiver or instruction of the Company Equityholder Representative in connection with this Agreement or the Escrow Agreement shall constitute a decision of all the Company Equityholders and shall be final, binding and conclusive upon each Company Equityholder, and the Buyer and the Surviving Corporation shall be entitled to rely conclusively on the decisions, acts, consents, waivers and instructions of the Company Equityholder Representative as to any determination relating to the transactions contemplated by this Agreement or the Escrow Agreement as being the decision, act, consent, waiver or instruction of every Company Equityholder, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital, any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII, the disbursement of all or any portion of the General Escrow Fund or the Adjustment Escrow Fund and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, all of which shall be final, conclusive and binding upon each Company Equityholder; no Person shall have any cause of action against the Buyer, the Surviving Corporation, or any of their respective directors, officers, employees, agents or Affiliates for any action taken by the Buyer or the Surviving Corporation in reliance upon any decision, act, consent, waiver or instruction of the Company Equityholder Representative; and the Buyer and the Surviving Corporation are each hereby relieved from any liability to any Person for any acts done by it in accordance with such decision, act, consent, waiver or instruction of the Company Equityholder Representative.
(f) None of the Buyer, the Surviving Corporation or any Company Equityholder shall have any cause of action against the Company Equityholder Representative for any action taken, decision made or instruction given by the Company Equityholder Representative under this Agreement or the Escrow Agreement, except in cases of Fraud, gross negligence or bad faith.
(g) . The provisions of this Section 1.11 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that the Buyer or any Company Equityholder may have in connection with the transactions contemplated by this Agreement or the Escrow Agreement.
(h) The Company Equityholders shall, in accordance with their Pro Rata Share, severally, but not jointly, indemnify and reimburse the Company Equityholder Representative for any reasonable expense incurred without Fraud, gross negligence or bad faith on the part of the Company Equityholder Representative and arising out of or in connection with the acceptance or administration of its duties hereunder (“Representative Reimbursable Expenses”). Any such claim for indemnification shall be satisfied first from any then available portion of the remaining Company Equityholder Representative Expense Amount and, if such amount is insufficient to satisfy any such Representative Reimbursable Expense, from the first proceeds from any Future Payments otherwise available for distribution to the Company Equityholders. Without limiting the foregoing, the Company Equityholder Representative shall have be entitled to: (i) rely upon the right Allocation Schedule, (ii) rely upon any signature believed by it to engage legal counsel be genuine, and other professional advisers (iii) reasonably assume that a signatory has proper authorization to assist it in sign on behalf of the administration of applicable Company Equityholder Representative’s duties hereunder, and any and all reasonable fees and expenses of such counsel and advisers shall be deemed Representative Reimbursable Expenses. In no event shall the Buyer or the Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse the Company Equityholder Representative for any costs or expenses of the Company Equityholder Representative, whether or not such costs or expenses constitute Representative Reimbursable Expensesother party.
(ic) At the Effective Time, the Buyer shall (in accordance with Section 1.3(d)(v)) pay the Company Equityholder Representative Expense Amount to the Company Equityholder Representative, which Company Equityholder Representative Expense Amount shall be maintained by the Company Equityholder Representative in a segregated account. Upon the determination The Company Equityholder Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Company Equityholder Expense Amount other than as a result of its gross negligence or willful misconduct. The Company Equityholder Representative that retaining is not acting as a withholding agent or in any portion similar capacity in connection with the Company Equityholder Expense Amount, and has no tax reporting or income distribution obligations. The Company Equityholders will not receive any interest on the Company Equityholder Expense Amount and assign to the Company Equityholder Representative any such interest. Subject to Advisory Group approval, the Company Equityholder Representative may contribute funds to the Company Equityholder Expense Amount from any consideration otherwise distributable to the Company Equityholders. The Company Equityholder Representative shall be reimbursed for any Company Equityholder Representative Expenses or any other reasonable out-of-pocket expenses incurred in the performance of the Company Equityholder Representative’s duties (including the reasonable fees and expenses of counsel) under this Agreement and under the Company Equityholder Representative Engagement Agreement from the Company Equityholder Representative Expense Amount is no longer necessaryand, if the Company Equityholder Representative shall deliver any then remaining portion of the Company Equityholder Representative Expense Amount is insufficient to pay such expenses, from the first proceeds from any Future Payments otherwise available for distribution to the Company Equityholders or directly from the Company Equityholders. In no event shall the Buyer or the Surviving Entity (or any of their respective Affiliates) be obligated to reimburse the “Company Equityholder Representative Account Payment”) to the Buyer for further payment in accordance with the Allocation Schedule.any such
Appears in 1 contract
Samples: Merger Agreement (Ophthotech Corp.)
Company Equityholder Representative. (a) To facilitate the administration By their execution of a Principal Stockholder Agreement, a Joinder Agreement, or a Letter of Transmittal, approval of the transactions contemplated by Merger and adoption of this Agreement and the Escrow Agreement, including the resolution and/or their acceptance of any disputes relating to claims for indemnification consideration pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, the Company Equityholders, by the terms of this Agreement and their execution and delivery, as applicable, of the Written Consent, the Letter of Transmittal, an Option Surrender Agreement and/or a Warrant Surrender Agreement, Equityholders hereby irrevocably (isubject only to Section 2.4(d)) designate appoint the Company Equityholder Representative as their the representative, attorney-in-fact and agentagent of the Company Equityholders for all purposes in connection with the transactions contemplated by this Agreement, the Paying Agent Agreement, the Escrow Agreement and any other agreements ancillary hereto and in any litigation or arbitration involving this Agreement, the Paying Agent Agreement, the Escrow Agreement and any other agreements ancillary hereto (ii) authorize but excluding, notwithstanding anything herein to the contrary, any Designated Employee Agreement). In connection therewith, the Company Equityholder Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents, as the Company Equityholder Representative shall deem necessary or appropriate, and shall have the power and authority to:
(i) act for any or all of the Company Equityholders with regard to all matters pertaining to this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(ii) act for any or all of the Company Equityholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Company Equityholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement, including delivering any update to or correction, amendment or modification of the Closing Date Allocation Schedule permitted by Section 2.7(a);
(iv) receive and administer the Company Equityholder Representative Expense Amount and make payments Amount;
(v) do or refrain from doing, on behalf of any or all of the Company Equityholders, any further act or deed that the Company Equityholder Representative Expense Amount and (iii) authorize deems necessary or appropriate in the Company Equityholder Representative Representative’s discretion relating to the subject matter of this Agreement, the Paying Agent Agreement or the Escrow Agreement, in each case as fully and completely as any Company Equityholder could do if personally present;
(vi) give and receive all notices required to be given or received by the Company Equityholders under this Agreement, the Paying Agent Agreement and or the Escrow Agreement;
(vii) give any written direction to the Paying Agent or the Escrow Agent;
(viii) agree to, to negotiate, resolve and settle any disputes or claims regarding the Closing Net Working Capital, achievement of the Milestones, negotiate and/or comply with the determination of the Milestone Payment Final Closing Adjustment Statement, the Final Closing Adjustment Items and any the Final Closing Adjustment pursuant to Section 2.6;
(ix) agree to, negotiate, enter into settlements and compromises and/or comply with arbitration awards and court orders with respect to claims for indemnification made by any Buyer Indemnified Party under Article VIIVIII; and
(x) receive service of process in connection with any claims under this Agreement, and to take any and all additional action as is contemplated to be taken by or on their (or any of their) behalf or by the Company Equityholder Representative by the terms of this Paying Agent Agreement and/or the Escrow Agreement. .
(b) All such decisions and actions of the Company Equityholder Representative on behalf of the Company Equityholders shall be deemed to be facts ascertainable outside of this Agreement and shall be binding on the upon all Company Equityholders.
(b) In the event that Xxxxx X. Xxxxxxxx becomes unable to perform the Company Equityholder Representative’s responsibilities hereunder or resigns from such position, the position of Company Equityholder Representative shall thereafter be filled by a majority in interest of the Company Equityholders, voting together as a single class on an as-converted basis, and such substituted representative shall be deemed to be the Company Equityholder Representative for all purposes of this Agreement and the Escrow Agreement and the documents delivered pursuant hereto or thereto.
(c) Upon any replacement of the Company Equityholder Representative, the Company Equityholder Representative being replaced shall transfer, or shall deem to transfer, to the new Company Equityholder Representative the balance of any unexpended Company Equityholder Representative Expense Amount.
(d) All decisions and actions by the Company Equityholder Representative in connection with the transactions contemplated by this Agreement or the Escrow Agreement, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital or any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, shall be binding upon each Company Equityholder, and no Company Equityholder shall have the right to object, dissent, protest or otherwise contest the same.
(ec) Any decisionAt the Effective Time, act(i) the Company Equityholder Representative shall enter into a confidentiality agreement with the Buyer in the form attached hereto as Exhibit B and (ii) the Buyer shall pay the Company Equityholder Representative Expense Amount to the Company Equityholder Representative, consentwhich Company Equityholder Representative Expense Amount shall be used for the purpose of paying directly, waiver or instruction reimbursing the Company Equityholder 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 Company Equityholder Representative Expense Amount and irrevocably transfer and assign to the Company Equityholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Company Equityholder Representative will not be liable for any loss of principal of the Company Equityholder Representative in connection with this Agreement or the Escrow Agreement shall constitute Expense Amount other than as a decision result of all the Company Equityholders and shall be final, binding and conclusive upon each Company Equityholder, and the Buyer and the Surviving Corporation shall be entitled to rely conclusively on the decisions, acts, consents, waivers and instructions of the Company Equityholder Representative as to any determination relating to the transactions contemplated by this Agreement or the Escrow Agreement as being the decision, act, consent, waiver or instruction of every Company Equityholder, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital, any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII, the disbursement of all or any portion of the General Escrow Fund or the Adjustment Escrow Fund and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, all of which shall be final, conclusive and binding upon each Company Equityholder; no Person shall have any cause of action against the Buyer, the Surviving Corporation, or any of their respective directors, officers, employees, agents or Affiliates for any action taken by the Buyer or the Surviving Corporation in reliance upon any decision, act, consent, waiver or instruction of the Company Equityholder Representative; and the Buyer and the Surviving Corporation are each hereby relieved from any liability to any Person for any acts done by it in accordance with such decision, act, consent, waiver or instruction of the Company Equityholder Representative.
(f) None of the Buyer, the Surviving Corporation or any Company Equityholder shall have any cause of action against the Company Equityholder Representative for any action taken, decision made or instruction given by the Company Equityholder Representative under this Agreement or the Escrow Agreement, except in cases of Fraudits bad faith, gross negligence or bad faith.
(g) willful misconduct. The provisions of this Section 1.11 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that the Buyer or any Company Equityholder may have in connection with the transactions contemplated by this Agreement or the Escrow Agreement.
(h) The Company Equityholders shall, in accordance with their Pro Rata Share, severally, but not jointly, indemnify and reimburse the Company Equityholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any reasonable expense incurred without Fraudother corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, gross negligence or bad faith on the part of the Company Equityholder Representative and arising out of or in connection with the acceptance or administration of its duties hereunder (“Representative Reimbursable Expenses”). Any such claim for indemnification shall be satisfied first from any then available portion of the remaining Company Equityholder Representative Expense Amount and, if such amount is insufficient to satisfy any such Representative Reimbursable Expense, from the first proceeds from any Future Payments otherwise available for distribution to will be treated as having been received and voluntarily set aside by the Company Equityholders. Without limiting Equityholders at the foregoing, the Company Equityholder Representative shall have the right to engage legal counsel and other professional advisers to assist it in the administration time of Company Equityholder Representative’s duties hereunder, and any and all reasonable fees and expenses of such counsel and advisers shall be deemed Representative Reimbursable ExpensesClosing. In no event shall the Buyer or the Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse the Company Equityholder Representative for any costs or expenses of the Company Equityholder Representative, whether or not such costs or expenses constitute Representative Reimbursable Expenses.
(i) At the Effective Time, the Buyer shall (in accordance with Section 1.3(d)(v)) pay the Company Equityholder Representative Expense Amount to the Company Equityholder Representative, which Company Equityholder Representative Expense Amount shall be maintained by the Company Equityholder Representative in a segregated accountexpenses. Upon the determination of the Company Equityholder Representative that retaining any portion of the Company Equityholder Representative Expense Amount is no longer necessary, the Company Equityholder Representative shall deliver any then remaining portion of the Company Equityholder Representative Expense Amount (the “Company Equityholder Representative Account Payment”) to the Paying Agent and the Surviving Corporation for further distribution to the Company Equityholders pursuant to Section 2.7(c). The Company Equityholder Representative shall hold, invest, reinvest and disburse the Company Equityholder Representative Expense Amount in trust for all of the Company Equityholders, and the Company Equityholder Representative Expense Amount shall not be used for any other purpose and shall not be available to the Buyer to satisfy any claims hereunder.
(d) The Company Equityholder Representative shall act for the Company Equityholders on all of the matters set forth in this Agreement, the Paying Agent Agreement and the Escrow Agreement in the manner the Company Equityholder Representative believes to be in the best interest of the Company Equityholders. The Company Equityholder Representative is authorized to act on behalf of the Company Equityholders notwithstanding any dispute or disagreement among the Company Equityholders. In taking any action as Company Equityholder Representative, the Company Equityholder Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person whom the Company Equityholder Representative reasonably believes to be authorized thereunto. The Company Equityholder Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Company Equityholder Representative shall not be liable to any Company Equityholder for anything done, omitted or suffered in good faith by the Company Equityholder Representative based on such advice. The Company Equityholder Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Company Equityholder Representative. The Company Equityholder Representative shall not have any liability of any kind to any of the Company Equityholders for any act done or omitted in connection with the Company Equityholder Representative’s services pursuant to this Agreement and any agreements ancillary hereto while acting in good faith. The Company Equityholders will indemnify, defend and hold harmless the Company Equityholder 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 Company Equityholder 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 bad faith, gross negligence or willful misconduct of the Company Equityholder Representative, the Company Equityholder Representative will reimburse the Company Equityholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. If not paid directly to the Company Equityholder Representative by the Company Equityholders, any such Representative Losses may be recovered by the Company Equityholder Representative from (i) the Company Equityholder Representative Expense Amount and (ii) any other funds that become payable to the Company Equityholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Equityholders; provided, that while this section allows the Company Equityholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Equityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Company Equityholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Company Equityholder Representative be required to advance its own funds on behalf of the Company Equityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided by the Company Equityholders to the Company Equityholder Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Company Equityholder Representative or the termination of this Agreement.
(e) In the event the Company Equityholder Representative becomes unable to perform the Company Equityholder Representative’s responsibilities hereunder or resigns from such position, the Company Equityholders (acting by a written instrument signed by holders of Company Stock who held, as of immediately prior to the Effective Time, a majority (by voting power) of the then outstanding shares of Company Stock) shall select another representative to fill the vacancy of the Company Equityholder Representative, and such substituted representative shall be deemed to be the Company Equityholder Representative for all purposes of this Agreement. The Company Equityholder Representative may be removed only upon delivery of written notice to the Buyer signed by Persons who, as of immediately prior to the Effective Time, held a majority (by voting power) of the then outstanding shares of Company Stock; provided that no such removal shall be effective until such time as a successor Company Equityholder Representative shall have been validly appointed hereunder. The Company Equityholder Representative shall provide the Buyer prompt written notice of any replacement of the Company Equityholder Representative, including the identity and address of the new Company Equityholder Representative. Upon any replacement of the Company Equityholder Representative, the Company Equityholder Representative being replaced shall transfer to the new Company Equityholder Representative the balance of any unexpended Company Equityholder Representative Expense Amount.
(f) For all purposes of this Agreement:
(i) the Buyer shall be entitled to rely conclusively on the instructions and decisions of the Company Equityholder Representative as to the settlement of any disputes or claims under this Agreement, the Paying Agent Agreement or the Escrow Agreement, or any other actions required or permitted to be taken by the Company Equityholder Representative hereunder, and no party hereunder or any Company Equityholder shall have any cause of action against the Buyer for further payment any action taken by the Buyer in accordance reliance upon the instructions or decisions of the Company Equityholder Representative;
(ii) the provisions of this Section 2.4 are independent and severable, are irrevocable (subject only to Section 2.4(d)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Equityholder may have in connection with the Allocation Scheduletransactions contemplated by this Agreement; and
(iii) the provisions of this Section 2.4 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Equityholder, and any references in this Agreement to a Company Equityholder shall mean and include the successors to the rights of each applicable Company Equityholder hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
Appears in 1 contract
Company Equityholder Representative. (a) To facilitate the administration of the transactions contemplated by this Agreement and the Escrow Agreement, including the resolution of any disputes relating to claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, the Company Equityholders, by the terms of this Agreement and By their execution and delivery, as applicable, of the Written Consent, Consents or the Letter of Transmittal, an Option Surrender approval of the Merger and adoption of this Agreement and/or a Warrant Surrender Agreementor their acceptance of any consideration pursuant to this Agreement and without any further action of any of the Company Equityholders or the Company, each Company Equityholder hereby irrevocably (isubject only to Section 2.4(e)) designate appoints the Company Equityholder Representative as their the representative, attorney-in-fact and agentexclusive agent of the Company Equityholders in connection with the transactions contemplated by this Agreement, (ii) authorize the Exchange and Paying Agent Agreement and the Escrow Agreement and in any Legal Proceeding involving this Agreement, the Exchange and Paying Agent Agreement and the Escrow Agreement. In connection therewith, the Company Equityholder Representative is authorized to receive do or refrain from doing all further acts and things, and to execute all such documents as the Company Equityholder Representative Expense Amount shall deem necessary or appropriate, and make payments from shall have the power and authority to:
(i) act for any or all of the Company Equityholders with regard to all matters pertaining to this Agreement, the Exchange and Paying Agent Agreement or the Escrow Agreement;
(ii) act for any or all of the Company Equityholders to transact Legal Proceedings pertaining to this Agreement;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Company Equityholder Representative Expense Amount deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement, the Exchange and Paying Agent Agreement or the Escrow Agreement;
(iiiiv) authorize do or refrain from doing, on behalf of any or all of the Company Equityholders, any further act or deed that the Company Equityholder Representative deems necessary or appropriate in the Company Equityholder Representative’s discretion relating to the subject matter of this Agreement, the Exchange and Paying Agent Agreement or the Escrow Agreement, in each case as fully and completely as any Company Equityholder could do if personally present;
(v) give and receive all notices required to be given or received by the Company Equityholders under this Agreement, the Exchange and Paying Agent Agreement and or the Escrow Agreement;
(vi) agree to, to negotiatedispute, resolve and settle any disputes negotiate or claims regarding the Closing Net Working Capital, achievement of the Milestones, comply with the determination of the Milestone Payment Final Closing Adjustment Statement, the Final Closing Adjustment Items and the Final Closing Adjustment pursuant to Section 2.6;
(vii) give any written direction to the Exchange and Paying Agent or the Escrow Agent; and
(viii) receive service of process in connection with any claims for indemnification under Article VII, this Agreement.
(b) All decisions and to take any and all additional action as is contemplated to be taken by or on their (or any actions of their) behalf or by the Company Equityholder Representative by under this Agreement, the terms of this Exchange and Paying Agent Agreement and/or or the Escrow Agreement. All such actions Agreement including on behalf of the Company Equityholders shall be deemed to be facts ascertainable outside of this Agreement and shall be final, binding on the and non-appealable upon all Company Equityholders.
(b) In the event that Xxxxx X. Xxxxxxxx becomes unable to perform the Company Equityholder Representative’s responsibilities hereunder or resigns from Equityholders and each of their successors as if expressly confirmed and ratified in writing by each such position, the position of Company Equityholder Representative shall thereafter be filled by a majority in interest of the Company Equityholders, voting together as a single class on an as-converted basis, and such substituted representative shall be deemed to be the Company Equityholder Representative for all purposes of this Agreement and the Escrow Agreement and the documents delivered pursuant hereto or thereto.
(c) Upon any replacement of the Company Equityholder Representative, the Company Equityholder Representative being replaced shall transfer, or shall deem to transfer, to the new Company Equityholder Representative the balance of any unexpended Company Equityholder Representative Expense Amount.
(d) All decisions and actions by the Company Equityholder Representative in connection with the transactions contemplated by this Agreement or the Escrow Agreement, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital or any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, shall be binding upon each Company Equityholder, and no Company Equityholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) Any decision. All defenses which may be available to any Company Equityholder to contest, act, consent, waiver negate or instruction disaffirm the action of the Company Equityholder Representative taken in connection with good faith under this Agreement, the Exchange and Paying Agent Agreement or the Escrow Agreement shall constitute a decision of all are waived.
(c) At the Company Equityholders and shall be finalClosing, binding and conclusive upon each Company Equityholder, and the Buyer and the Surviving Corporation shall be entitled to rely conclusively on the decisions, acts, consents, waivers and instructions of the Company Equityholder Representative shall enter into a confidentiality agreement with the Buyer in the form attached hereto as Exhibit B. The Company Equityholder Representative shall not be paid any fee for services to be rendered hereunder except as provided under the engagement agreement entered into by certain of the Company Equityholders with the Company Equityholder Representative (the “Company Equityholder Representative Engagement Agreement”).
(d) The Company Equityholder Representative shall act for the Company Equityholders on all of the matters set forth in this Agreement in the manner the Company Equityholder Representative believes to be in the best interest of the Company Equityholders, subject to the terms hereof. The Company Equityholder Representative is authorized to act on behalf of the Company Equityholders notwithstanding any dispute or disagreement among the Company Equityholders. In taking any action as Company Equityholder Representative, the Company Equityholder Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person whom the Company Equityholder Representative reasonably believes to be authorized thereunto. The Company Equityholder Representative may, in all questions arising hereunder, under the Exchange and Paying Agent Agreement or under the Escrow Agreement, rely on the advice of counsel, and the Company Equityholder Representative shall not be liable to any determination relating to the transactions contemplated by this Agreement Company Equityholder for anything done, omitted or the Escrow Agreement as being the decision, act, consent, waiver or instruction of every Company Equityholder, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital, any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII, the disbursement of all or any portion of the General Escrow Fund or the Adjustment Escrow Fund and any other actions required or permitted to be taken suffered in good faith by the Company Equityholder Representative under based on such advice. The Company Equityholder Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or the Escrow Agreement, all of which obligations shall be final, conclusive and binding upon each Company Equityholder; no Person shall have any cause of action read into this Agreement against the Buyer, the Surviving Corporation, or any of their respective directors, officers, employees, agents or Affiliates for any action taken by the Buyer or the Surviving Corporation in reliance upon any decision, act, consent, waiver or instruction of the Company Equityholder Representative; and the Buyer and the Surviving Corporation are each hereby relieved from . The Company Equityholder Representative (in its capacity as such) shall not have any liability to any Person for any acts done by it in accordance with such decision, act, consent, waiver or instruction of the Company Equityholder Representative.
(f) None of the Buyer, the Surviving Corporation Equityholders for any act done or any Company Equityholder shall have any cause of action against the omitted hereunder as Company Equityholder Representative for any action takenwhile acting in good faith. The Company Equityholder Representative Group shall be indemnified, decision made or instruction given defended and held harmless by the Company Equityholders from and against any loss, liability, claim, damage, fee, cost, expense (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgment, fine or amount paid in settlement (collectively, the “Company Equityholder Representative under this Agreement or the Escrow Agreement, except in cases of Fraud, Expenses”) incurred without gross negligence or bad faith.
(g) The provisions of this Section 1.11 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that the Buyer or any Company Equityholder may have in connection with the transactions contemplated by this Agreement or the Escrow Agreement.
(h) The Company Equityholders shall, in accordance with their Pro Rata Share, severally, but not jointly, indemnify and reimburse the Company Equityholder Representative for any reasonable expense incurred without Fraud, gross negligence or bad faith willful misconduct on the part of the Company Equityholder Representative and arising out of or in connection with the acceptance or administration of its the Company Equityholder Representative’s duties hereunder (“Representative Reimbursable Expenses”)hereunder, under the Exchange and Paying Agent Agreement or under the Escrow Agreement. Any such claim for indemnification shall be satisfied first from any then available portion of the remaining Company Equityholder Representative Expense Amount andExpenses may be satisfied first, if such amount is insufficient to satisfy any such from the Representative Reimbursable ExpenseFund, second from the first proceeds from any Future Payments Payment that becomes payable pursuant to the terms of this Agreement or from any other amounts otherwise available for distribution to the Company Equityholders and third, directly from the Company Equityholders.
(e) In the event the Company Equityholder Representative becomes unable to perform the Company Equityholder Representative’s responsibilities hereunder or resigns from such position, the Company Stockholders (acting by a written instrument signed by holders of Company Stock who held, as of immediately prior to the Effective Time, a majority (by voting power) of the then outstanding shares of Company Stock) shall select another representative to fill the vacancy of the Company Equityholder Representative, and such substituted representative shall be deemed to be the Company Equityholder Representative for all purposes of this Agreement. Without limiting The Company Equityholder Representative may be removed only upon delivery of written notice to the foregoingBuyer signed by Persons who, as of immediately prior to the Effective Time, held a majority (by voting power) of the then outstanding shares of Company Stock; provided that no such removal shall be effective until such time as a successor Company Equityholder Representative shall have been validly appointed hereunder. The applicable Company Stockholders per the above shall provide the Buyer prompt written notice of any replacement of the Company Equityholder Representative, including the identity and address of the new Company Equityholder Representative. The immunities and rights to indemnification granted to the Company Equityholder Representative Group hereunder shall survive the resignation or removal of the Company Equityholder Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement, the Exchange and Paying Agent Agreement or the Escrow Agreement.
(f) For all purposes of this Agreement:
(i) the Buyer, the Transitory Subsidiary, the Escrow Agent and the Exchange and Paying Agent shall be entitled to rely conclusively on the instructions and decisions of the Company Equityholder Representative as to the settlement of any disputes or claims under this Agreement, the Exchange and Paying Agent Agreement or the Escrow Agreement, or any other actions required or permitted to be taken by the Company Equityholder Representative hereunder, and no party hereunder or any Company Equityholder shall have any cause of action against the Buyer, the Transitory Subsidiary, the Escrow Agent or the Exchange and Paying Agent for any action taken by the Buyer in reliance upon the instructions or decisions of the Company Equityholder Representative;
(ii) except as specifically set forth herein, no Company Equityholder shall have any right to bring any claim, cause of action, objection or complaint except through the Company Equityholder Representative, and the Company Equityholder Representative shall have the right sole authority to engage act for, and to enforce the rights of, all Company Equityholders in connection with this Agreement and the transactions contemplated hereby;
(iii) the provisions of this Section 2.4 are independent and severable, are irrevocable (subject only to Section 2.4(e)) and coupled with an interest, shall survive the death, incompetence, bankruptcy or liquidation of any Company Equityholder and shall be enforceable notwithstanding any rights or remedies that any Company Equityholder may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 2.4 shall be binding upon the executors, heirs, legal counsel representatives, personal representatives, successor trustees and other professional advisers to assist it successors of each Company Equityholder and survive the delivery of an assignment by any Company Equityholder of the whole or any fraction of his, her or its interest in the administration of Company Equityholder Representative’s duties Escrow Funds or other amounts hereunder, and any references in this Agreement to a Company Equityholder shall mean and all reasonable fees include the successors to the rights of each applicable Company Equityholder hereunder, whether pursuant to testamentary disposition, the Laws of descent and expenses of such counsel and advisers shall distribution or otherwise.
(g) The Representative Fund will be deemed Representative Reimbursable Expenses. In no event shall the Buyer or the Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse held by the Company Equityholder Representative for any costs or expenses of the Company Equityholder Representative, whether or not such costs or expenses constitute Representative Reimbursable Expenses.
(i) At the Effective Time, the Buyer shall (purposes set forth in accordance with this Section 1.3(d)(v)) pay the 2.4. The Company Equityholder Representative Expense shall hold the Representative Fund Amount to the Company Equityholder Representative, which Company Equityholder Representative Expense Amount shall be maintained by the Company Equityholder Representative in a segregated client account. The Representative Fund shall not be used for any other purpose and shall not be available to the Buyer to satisfy any claims hereunder. Upon the reasonable determination of the Company Equityholder Representative that retaining any portion of the Company Equityholder Representative Expense Amount Fund is no longer necessary, the Company Equityholder Representative shall deliver any then remaining portion of the Company Equityholder Representative Expense Amount (the “Company Equityholder Representative Account Payment”) Fund to the Buyer Buyer, which will promptly pay such amount to the Exchange and Paying Agent and the Surviving Corporation for further payment in accordance with distribution to the Allocation ScheduleCompany Equityholders pursuant to Section 2.8.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Victoria's Secret & Co.)
Company Equityholder Representative. (a) To facilitate the administration of the transactions contemplated by this Agreement and the Escrow Agreement, including the resolution of any disputes relating to claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, the Company Equityholders, by the terms of this Agreement and By their execution and delivery, as applicable, of the Written Consent, the a Letter of Transmittal, an Option Surrender approval of the Merger and adoption of this Agreement and/or a Warrant Surrender their acceptance of any consideration pursuant to this Agreement, and without any further action on the part of any Company Equityholder or the Company, the Company Equityholders hereby irrevocably (isubject only to Section 2.4(f)) designate appoint the Company Equityholder Representative as their the representative, attorney-in-fact and agentexclusive agent of the Company Equityholders in connection with the transactions contemplated by this Agreement, (ii) authorize the Exchange Agent Agreement and the Escrow Agreement and in any litigation or arbitration involving this Agreement, the Exchange Agent Agreement or the Escrow Agreement. In connection therewith, the Company Equityholder Representative is authorized to receive do or refrain from doing all further acts and things, and to execute all such documents as the Company Equityholder Representative Expense Amount shall deem necessary or appropriate, and make payments from shall have the power and authority to:
(i) act for some or all of the Company Equityholders with regard to all matters pertaining to this Agreement, the Exchange Agent Agreement, the Escrow Agreement or the Equityholder Representative Engagement Agreement;
(ii) act for the Company Equityholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Company Equityholder Representative Expense Amount deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement, the Exchange Agent Agreement or the Escrow Agreement, including delivering any update to or correction, amendment or modification of the Allocation Schedule permitted by Section 2.7(a);
(iv) receive funds, make payments of funds, and give receipts for funds;
(iiiv) authorize do or refrain from doing, on behalf of the Company Equityholders, any further act or deed that the Company Equityholder Representative deems necessary or appropriate in the Company Equityholder Representative’s discretion relating to the subject matter of this Agreement, the Exchange Agent Agreement, the Escrow Agreement or the Equityholder Representative Engagement Agreement, in each case as fully and completely as the Company Equityholders could do if personally present;
(vi) give and receive all notices required to be given or received by the Company Equityholders under this Agreement, the Exchange Agent Agreement and or the Escrow Agreement;
(vii) give any written direction to the Exchange Agent or the Escrow Agent;
(viii) agree to, to negotiate, resolve and settle any disputes or claims regarding the Closing Net Working Capital, achievement of the Milestones, negotiate and/or comply with the determination of the Milestone Payment Final Closing Cash Consideration and the Final Closing Cash Consideration Adjustment pursuant to Section 2.6; and
(ix) receive service of process in connection with any claims for indemnification under Article VIIthis Agreement, and to take any and all additional action as is contemplated to be taken by or on their (or any of their) behalf or by the Company Equityholder Representative by the terms of this Exchange Agent Agreement and/or the Escrow Agreement. Notwithstanding the foregoing, the Company Equityholder Representative shall have no obligation to act on behalf of the Company Equityholders, except as expressly provided herein, in the Exchange Agent Agreement and in the Escrow Agreement, and, for the avoidance of doubt, there are no obligations of the Company Equityholder Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedule.
(b) All such decisions and actions of the Company Equityholder Representative on behalf of the Company Equityholders shall be deemed to be facts ascertainable outside this of the Merger Agreement and shall be binding on the upon all Company Equityholders.
(b) In the event that Xxxxx X. Xxxxxxxx becomes unable to perform the Company Equityholder Representative’s responsibilities hereunder or resigns from such position, the position of Company Equityholder Representative shall thereafter be filled by a majority Equityholders and their successors as if expressly confirmed and ratified in interest of the Company Equityholders, voting together as a single class on an as-converted basis, and such substituted representative shall be deemed to be the Company Equityholder Representative for all purposes of this Agreement and the Escrow Agreement and the documents delivered pursuant hereto or thereto.
(c) Upon any replacement of the Company Equityholder Representative, the Company Equityholder Representative being replaced shall transfer, or shall deem to transfer, to the new Company Equityholder Representative the balance of any unexpended Company Equityholder Representative Expense Amount.
(d) All decisions and actions by the Company Equityholder Representative in connection with the transactions contemplated by this Agreement or the Escrow Agreement, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital or any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, shall be binding upon each Company Equityholderwriting, and no Company Equityholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) Any decision. All defenses which may be available to any Company Equityholder to contest, act, consent, waiver negate or instruction disaffirm the action of the Company Equityholder Representative taken in connection with good faith under this Agreement or the Escrow Agreement shall constitute a decision of all the Company Equityholders and shall be final, binding and conclusive upon each Company Equityholder, and the Buyer and the Surviving Corporation shall be entitled to rely conclusively on the decisions, acts, consents, waivers and instructions of the Company Equityholder Representative as to any determination relating to the transactions contemplated by this Agreement or the Escrow Agreement as being the decision, act, consent, waiver or instruction of every Company Equityholder, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital, any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VIIAgreement, the disbursement of all or any portion of the General Escrow Fund or the Adjustment Escrow Fund and any other actions required or permitted to be taken by the Company Equityholder Representative under this Exchange Agent Agreement or the Escrow Agreement, all of which shall be final, conclusive and binding upon each Company Equityholder; no Person shall have any cause of action against the Buyer, the Surviving Corporation, or any of their respective directors, officers, employees, agents or Affiliates for any action taken by the Buyer or the Surviving Corporation in reliance upon any decision, act, consent, waiver or instruction of the Company Equityholder Representative; and the Buyer and the Surviving Corporation are each hereby relieved from any liability to any Person for any acts done by it in accordance with such decision, act, consent, waiver or instruction of the Company Equityholder Representative.
(f) None of the Buyer, the Surviving Corporation or any Company Equityholder shall have any cause of action against the Company Equityholder Representative for any action taken, decision made or instruction given by the Company Equityholder Representative under this Engagement Agreement or the Escrow Agreement, except in cases of Fraud, gross negligence or bad faithare waived.
(g) The provisions of this Section 1.11 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that the Buyer or any Company Equityholder may have in connection with the transactions contemplated by this Agreement or the Escrow Agreement.
(h) The Company Equityholders shall, in accordance with their Pro Rata Share, severally, but not jointly, indemnify and reimburse the Company Equityholder Representative for any reasonable expense incurred without Fraud, gross negligence or bad faith on the part of the Company Equityholder Representative and arising out of or in connection with the acceptance or administration of its duties hereunder (“Representative Reimbursable Expenses”). Any such claim for indemnification shall be satisfied first from any then available portion of the remaining Company Equityholder Representative Expense Amount and, if such amount is insufficient to satisfy any such Representative Reimbursable Expense, from the first proceeds from any Future Payments otherwise available for distribution to the Company Equityholders. Without limiting the foregoing, the Company Equityholder Representative shall have the right to engage legal counsel and other professional advisers to assist it in the administration of Company Equityholder Representative’s duties hereunder, and any and all reasonable fees and expenses of such counsel and advisers shall be deemed Representative Reimbursable Expenses. In no event shall the Buyer or the Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse the Company Equityholder Representative for any costs or expenses of the Company Equityholder Representative, whether or not such costs or expenses constitute Representative Reimbursable Expenses.
(i) At the Effective Time, the Buyer shall (in accordance with Section 1.3(d)(v)) pay the Company Equityholder Representative Expense Amount to the Company Equityholder Representative, which Company Equityholder Representative Expense Amount shall be maintained by the Company Equityholder Representative in a segregated account. Upon the determination of the Company Equityholder Representative that retaining any portion of the Company Equityholder Representative Expense Amount is no longer necessary, the Company Equityholder Representative shall deliver any then remaining portion of the Company Equityholder Representative Expense Amount (the “Company Equityholder Representative Account Payment”) to the Buyer for further payment in accordance with the Allocation Schedule.
Appears in 1 contract
Company Equityholder Representative. (a) To facilitate the administration By (i) their (A) execution of the transactions contemplated by this Agreement and the Escrow Agreement, including the resolution of any disputes relating to claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, the Company Equityholders, by the terms of this Agreement and their execution and delivery, as applicable, of the Written Consent, the a Letter of Transmittal, an Option Surrender Agreement and/or a Warrant Surrender Agreement, hereby (iB) designate approval of the Merger and adoption of this Agreement and/or (C) participation in the Merger and receipt of the benefits thereof, including the right to receive any consideration pursuant to this Agreement, and/or (ii) the consummation of the Merger, each of the Company Equityholder Equityholders (as of the Effective Time) shall be deemed to have approved the designation of, and hereby irrevocably (subject only to Section 1.11(e)) appoints Shareholder Representative Services LLC as their the representative, attorney-in-fact and agentagent of the Company Equityholders for all purposes in connection with the transactions contemplated by this Agreement, (ii) authorize the Payment Agent Agreement and the Escrow Agreement and in any litigation or arbitration involving this Agreement, the Payment Agent Agreement or the Escrow Agreement, and any agreements ancillary hereto or thereto. In connection with such designation and appointment, the Company Equityholder Representative, from and after the Closing, is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Company Equityholder Representative shall deem necessary or appropriate, and, without limitation of the foregoing, shall have the power and authority to:
(i) act for some or all of the Company Equityholders with regard to all matters pertaining to this Agreement, the Payment Agent Agreement and/or the Escrow Agreement;
(ii) receive the Company Equityholder Representative Expense Amount and make payments from to be used for the Company Equityholder Representative Expense Amount and purposes contemplated by this Agreement;
(iii) authorize the Company Equityholder Representative to give and receive all notices on behalf of the Company Equityholders required or contemplated to be given under this Agreement and Agreement, the Escrow Agreement and/or the Payment Agent Agreement;
(iv) on behalf of the Company Equityholders, to negotiate, resolve and settle any disputes or claims regarding the Closing Net Working CapitalAdjustment Amount (or any component thereof), achievement of the MilestonesMilestone Events, the determination of the any Milestone Payment and any claims for indemnification under Article VII;
(v) act for the Company Equityholders to transact matters of litigation;
(vi) execute and deliver all amendments, waivers, ancillary agreements, certificates and to take any and all additional action as is contemplated to be taken by or on their (or any of their) behalf or by documents that the Company Equityholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement, the terms Payment Agent Agreement or the Escrow Agreement, including delivering any update to or correction, amendment or modification of the Allocation Schedule permitted by Section 1.16;
(vii) do or refrain from doing, on behalf of the Company Equityholders, any further act or deed that the Company Equityholder Representative deems necessary or appropriate in the Company Equityholder Representative’s discretion relating to the subject matter of this Agreement, the Payment Agent Agreement or the Escrow Agreement, in each case as fully and completely as the Company Equityholders could do or refrain from doing if personally present;
(viii) on behalf of the Company Equityholders, give any written direction to the Payment Agent or the Escrow Agent; and
(ix) on behalf of all Company Equityholders, receive service of process in connection with any claims under this Agreement, the Payment Agent Agreement and/or the Escrow Agreement. .
(b) All such decisions and actions of the Company Equityholder Representative on behalf of the Company Equityholders shall be deemed to be facts ascertainable outside of this Agreement and shall be binding on the upon all Company Equityholders.
(b) In the event that Xxxxx X. Xxxxxxxx becomes unable to perform the Company Equityholder Representative’s responsibilities hereunder or resigns from such position, the position of Company Equityholder Representative shall thereafter be filled by a majority in interest of the Company Equityholders, voting together as a single class on an as-converted basis, and such substituted representative shall be deemed to be the Company Equityholder Representative for all purposes of this Agreement and the Escrow Agreement and the documents delivered pursuant hereto or thereto.
(c) Upon any replacement of the Company Equityholder Representative, the Company Equityholder Representative being replaced shall transfer, or shall deem to transfer, to the new Company Equityholder Representative the balance of any unexpended Company Equityholder Representative Expense Amount.
(d) All decisions and actions by the Company Equityholder Representative in connection with the transactions contemplated by this Agreement or the Escrow Agreement, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital or any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, shall be binding upon each Company Equityholder, and no Company Equityholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) Any decision, act, consent, waiver or instruction of the Company Equityholder Representative in connection with this Agreement or the Escrow Agreement shall constitute a decision of all the Company Equityholders and shall be final, binding and conclusive upon each Company Equityholder, and the Buyer and the Surviving Corporation shall be entitled to rely conclusively on the decisions, acts, consents, waivers and instructions of the Company Equityholder Representative as to any determination relating to the transactions contemplated by this Agreement or the Escrow Agreement as being the decision, act, consent, waiver or instruction of every Company Equityholder, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital, any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII, the disbursement of all or any portion of the General Escrow Fund or the Adjustment Escrow Fund and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, all of which shall be final, conclusive and binding upon each Company Equityholder; no Person shall have any cause of action against the Buyer, the Surviving Corporation, or any of their respective directors, officers, employees, agents or Affiliates for any action taken by the Buyer or the Surviving Corporation in reliance upon any decision, act, consent, waiver or instruction of the Company Equityholder Representative; and the Buyer and the Surviving Corporation are each hereby relieved from any liability to any Person for any acts done by it in accordance with such decision, act, consent, waiver or instruction of the Company Equityholder Representative.
(f) None of the Buyer, the Surviving Corporation or any Company Equityholder shall have any cause of action against the Company Equityholder Representative for any action taken, decision made or instruction given by the Company Equityholder Representative under this Agreement or the Escrow Agreement, except in cases of Fraud, gross negligence or bad faith.
(g) The provisions of this Section 1.11 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that the Buyer or any Company Equityholder may have in connection with the transactions contemplated by this Agreement or the Escrow Agreement.
(h) The Company Equityholders shall, in accordance with their Pro Rata Share, severally, but not jointly, indemnify and reimburse the Company Equityholder Representative for any reasonable expense incurred without Fraud, gross negligence or bad faith on the part of the Company Equityholder Representative and arising out of or in connection with the acceptance or administration of its duties hereunder (“Representative Reimbursable Expenses”). Any such claim for indemnification shall be satisfied first from any then available portion of the remaining Company Equityholder Representative Expense Amount and, if such amount is insufficient to satisfy any such Representative Reimbursable Expense, from the first proceeds from any Future Payments otherwise available for distribution to the Company Equityholders. Without limiting the foregoing, the Company Equityholder Representative shall have the right to engage legal counsel and other professional advisers to assist it in the administration of Company Equityholder Representative’s duties hereunder, and any and all reasonable fees and expenses of such counsel and advisers shall be deemed Representative Reimbursable Expenses. In no event shall the Buyer or the Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse the Company Equityholder Representative for any costs or expenses of the Company Equityholder Representative, whether or not such costs or expenses constitute Representative Reimbursable Expenses.
(ic) At the Effective Time, the Buyer shall (in accordance with Section 1.3(d)(v)) pay the Company Equityholder Representative Expense Amount to the Company Equityholder Representative, which Company Equityholder Representative Expense Amount shall be maintained by the Company Equityholder Representative in a segregated account, which will be used solely for the purposes of paying directly, or reimbursing the Company Equityholder 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 Company Equityholder Representative Expense Amount and irrevocably transfer and assign to the Company Equityholder Representative any ownership right that they may otherwise have had in such interest or earnings. The Company Equityholder Representative will not be liable for any loss of principal of the Company Equityholder Representative Expense Amount other than as a result of its gross negligence or willful misconduct. The Company Equityholder Representative will hold the Company Equityholder Representative Expense Amount separate from its corporate funds, will not use the Company Equityholder Representative Expense Amount for its operating expenses or any other corporate purposes and will not voluntarily make the Company Equityholder Representative Expense Amount available to its creditors in the event of bankruptcy. Upon the determination of the Company Equityholder Representative that retaining any portion of the Company Equityholder Representative Expense Amount is no longer necessary, the Company Equityholder Representative shall deliver any then remaining portion of the Company Equityholder Representative Expense Amount (the “Company Equityholder Representative Account Payment”) in accordance with Section 1.16. For Tax purposes, the Company Equityholder Representative Expense Amount will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) The Company Equityholder Representative shall act for the Company Equityholders on all of the matters set forth in this Agreement, the Payment Agent Agreement and the Escrow Agreement in the manner that the Company Equityholder Representative believes to be in the best interest of the Company Equityholders. The Company Equityholder Representative is authorized to act on behalf of the Company Equityholders notwithstanding any dispute or disagreement among the Company Equityholders (or any of them). In taking any action as Company Equityholder Representative, the Company Equityholder Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person whom the Company Equityholder Representative reasonably believes to be authorized thereunto. The Company Equityholder Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Company Equityholder Representative shall not be liable to any of the Parties or to any Company Equityholder for anything done, omitted or suffered in good faith by the Company Equityholder Representative based on such advice. The Company Equityholder Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Company Equityholder Representative. The Company Equityholder Representative will incur no liability of any kind with respect to any action or omission by the Company Equityholder Representative in connection with the Company Equityholder Representative’s services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Company Equityholder Representative’s gross negligence or willful misconduct. The Company Equityholders will indemnify, defend and hold harmless the Company Equityholder 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 Company Equityholder 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 Company Equityholder Representative, the Company Equityholder Representative will reimburse the Company Equityholders in the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Company Equityholder Representative by the Company Equityholders, any such Representative Losses may be recovered by the Company Equityholder Representative from (i) the Company Equityholder Representative Expense Amount, (ii) any amounts in the Escrow Fund at such time as any such amounts would otherwise be payable to the Company Equityholders and (iii) any Milestone Consideration at such time as any such amounts would otherwise be payable to the Company Equityholders; provided, that while this section allows the Company Equityholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Equityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Company Equityholder Representative from seeking any remedies available to it against the Company Equityholders at law or otherwise (it being understood that the Company Equityholder Representative shall have no recourse against the Buyer or any of its Affiliates (including the Company) for any such Representative Losses or otherwise). In no event will the Company Equityholder Representative be required to advance its own funds on behalf of the Company Equityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Company Equityholder Representative under this Section 1.11(d). The foregoing indemnities will survive the Closing, the resignation or removal of the Company Equityholder Representative or the termination of this Agreement.
(e) The Company Equityholder Representative may resign at any time. In the event the Company Equityholder Representative becomes unable to perform the Company Equityholder Representative’s responsibilities hereunder or resigns from such position, the Company Equityholders (acting by a written instrument signed by those Company Equityholders set forth on Schedule 1.11(e) (the “Representative Committee”) shall select another representative to fill the vacancy of the Company Equityholder Representative within ninety (90) days after such inability to perform or resignation, and such substituted representative shall, upon notice to the Buyer, be deemed to be the Company Equityholder Representative for all purposes of this Agreement; provided that, if, within ninety (90) days after such inability to perform or resignation, such signed written instrument from the Representative Committee is not obtained, Xxxx Xxxxxxxxx shall be deemed the Company Equityholder Representative until the Representative Committee appoints a successor. The Company Equityholder Representative may be removed only upon delivery of written instrument to the Buyer signed by the Representative Committee appointing a successor Company Equityholder Representative.
(f) For all purposes of this Agreement:
(i) from and after the Effective Time, the Buyer shall be entitled to rely conclusively on the instructions and decisions of the Company Equityholder Representative as to all matters arising under this Agreement, including the settlement of any disputes or claims under this Agreement, or any other actions required or permitted to be taken by the Company Equityholder Representative hereunder, and no Party or any Company Equityholder shall have any cause of action against the Buyer for further payment any action taken by the Buyer in accordance reliance upon the instructions or decisions of the Company Equityholder Representative, absent manifest error;
(ii) the provisions of this Section 1.11 (and the power and authority granted to the Company Equityholder Representative hereunder) are independent and severable, are irrevocable (subject only to Section 1.11(e)) and coupled with an interest sufficient at law to support an irrevocable power and shall be enforceable notwithstanding any rights or remedies that any Company Equityholder may have in connection with the Allocation Scheduletransactions contemplated by this Agreement; and
(iii) the provisions of this Section 1.11 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Equityholder, and any references in this Agreement to a Company Equityholder shall mean and include the successors to the rights of each applicable Company Equityholder hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Company Equityholder Representative. (a) To facilitate the administration By their execution of the transactions contemplated by this Agreement and the Escrow Agreement, including the resolution of any disputes relating to claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, the Company Equityholders, by the terms of this Agreement and their execution and delivery, as applicable, of the Written Consent, the Letter of Transmittal, an Option Surrender approval of the Merger and adoption of this Agreement and/or a Warrant Surrender their acceptance of any consideration pursuant to this Agreement, the Company Equityholders hereby irrevocably (isubject only to Section 2.4(e)) designate appoint the Company Equityholder Representative as their the representative, attorney-in-fact and agentagent of the Company Equityholders in connection with the transactions contemplated by this Agreement, (ii) authorize the Exchange and Paying Agent Agreement and in any litigation or arbitration involving this Agreement or the Exchange and Paying Agent Agreement. In connection therewith, the Company Equityholder Representative is authorized to receive do or refrain from doing all further acts and things, and to execute all such documents as the Company Equityholder Representative Expense Amount shall deem necessary or appropriate, and make payments from shall have the power and authority to:
(i) act for some or all of the Company Equityholders with regard to all matters pertaining to this Agreement and any agreements ancillary hereto, including, the Exchange and Paying Agent Agreement;
(ii) act for the Company Equityholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Company Equityholder Representative Expense Amount deems necessary or appropriate in connection with the Exchange and Paying Agent Agreement, including delivering any update to or correction, amendment or modification of the Allocation Schedule permitted by Section 2.7(a);
(iiiiv) authorize receive funds, make payments of funds, and give receipts for funds;
(v) do or refrain from doing, on behalf of the Company Equityholders, any further act or deed that the Company Equityholder Representative deems necessary or appropriate in the Company Equityholder Representative’s discretion relating to the Exchange and Paying Agent Agreement, in each case as fully and completely as the Company Equityholders could do if personally present;
(vi) give and receive all notices required to be given or received by the Company Equityholders under this Agreement and any agreements ancillary hereto, including, the Escrow Exchange and Paying Agent Agreement;
(vii) give any written direction to the Exchange and Paying Agent on behalf of the Company Equityholders;
(viii) agree to, to negotiate, resolve enter into settlements and settle any disputes or claims regarding the Closing Net Working Capital, achievement of the Milestones, the determination of the Milestone Payment compromises and/or comply with arbitration awards and any court orders with respect to claims for indemnification made by the Parent under Article VII; and
(ix) receive service of process in connection with any claims under this Agreement and any agreements ancillary hereto, including and to take any the Exchange and all additional action as is contemplated to be taken by or on their Paying Agent Agreement.
(or any b) All decisions and actions of their) behalf or by the Company Equityholder Representative by on behalf of the terms of this Agreement and/or the Escrow Agreement. All such actions Company Equityholders shall be deemed to be facts ascertainable outside of this Agreement and shall be binding on the upon all Company Equityholders.
(b) In the event that Xxxxx X. Xxxxxxxx becomes unable to perform the Company Equityholder Representative’s responsibilities hereunder or resigns from such position, the position of Company Equityholder Representative shall thereafter be filled by a majority in interest of the Company Equityholders, voting together as a single class on an as-converted basis, and such substituted representative shall be deemed to be the Company Equityholder Representative for all purposes of this Agreement and the Escrow Agreement and the documents delivered pursuant hereto or thereto.
(c) Upon any replacement of the Company Equityholder Representative, the Company Equityholder Representative being replaced shall transfer, or shall deem to transfer, to the new Company Equityholder Representative the balance of any unexpended Company Equityholder Representative Expense Amount.
(d) All decisions and actions by the Company Equityholder Representative in connection with the transactions contemplated by this Agreement or the Escrow Agreement, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital or any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, shall be binding upon each Company Equityholder, and no Company Equityholder shall have the right to object, dissent, protest or otherwise contest the same.
(ec) Any decision, act, consent, waiver or instruction The Company Equityholder Representative shall act for the Company Equityholders on all of the matters set forth in this Agreement and the Exchange and Paying Agent Agreement in the manner the Company Equityholder Representative believes to be in connection with this Agreement or the Escrow Agreement shall constitute a decision best interest of all the Company Equityholders. The Company Equityholder Representative is authorized to act on behalf of the Company Equityholders and shall be finalnotwithstanding any dispute or disagreement among the Company Equityholders. In taking any action as Company Equityholder Representative, binding and conclusive upon each Company Equityholder, and the Buyer and the Surviving Corporation shall be entitled to rely conclusively on the decisions, acts, consents, waivers and instructions of the Company Equityholder Representative as may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person whom the Company Equityholder Representative reasonably believes to be authorized thereunto. The Company Equityholder Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Company Equityholder Representative shall not be liable to any determination relating to the transactions contemplated by this Agreement Company Equityholder for anything done, omitted or the Escrow Agreement as being the decision, act, consent, waiver or instruction of every Company Equityholder, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital, any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII, the disbursement of all or any portion of the General Escrow Fund or the Adjustment Escrow Fund and any other actions required or permitted to be taken suffered in good faith by the Company Equityholder Representative under based on such advice. The Company Equityholder Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or the Escrow Agreement, all of which obligations shall be final, conclusive and binding upon each Company Equityholder; no Person shall have any cause of action read into this Agreement against the Buyer, the Surviving Corporation, or any of their respective directors, officers, employees, agents or Affiliates for any action taken by the Buyer or the Surviving Corporation in reliance upon any decision, act, consent, waiver or instruction of the Company Equityholder Representative; and the Buyer and the Surviving Corporation are each hereby relieved from . The Company Equityholder Representative shall not have any liability to any Person for any acts done by it in accordance with such decision, act, consent, waiver or instruction of the Company Equityholder Representative.
(f) None of the Buyer, the Surviving Corporation Equityholders for any act done or any Company Equityholder shall have any cause of action against the omitted hereunder as Company Equityholder Representative for any action taken, decision made or instruction given while acting in good faith. The Company Equityholder Representative shall be indemnified by the Company Equityholder Representative under this Agreement Equityholders from and against any loss, liability or the Escrow Agreement, except in cases of Fraud, gross negligence or bad faith.
(g) The provisions of this Section 1.11 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that the Buyer or any Company Equityholder may have in connection with the transactions contemplated by this Agreement or the Escrow Agreement.
(h) The Company Equityholders shall, in accordance with their Pro Rata Share, severally, but not jointly, indemnify and reimburse the Company Equityholder Representative for any reasonable expense incurred without Fraud, gross negligence or bad in good faith on the part of the Company Equityholder Representative and arising out of or in connection with the acceptance or administration of its the Company Equityholder Representative’s duties hereunder (“Representative Reimbursable Expenses”)hereunder. Any such claim for indemnification shall be satisfied first from by a claim against the Company Equityholders (with each Company Equityholder liable for the Pro Rata Share of any then available portion of such claim that is represented by such Company Equityholder’s Company Stock and Company Equity Awards).
(d) In the remaining event the Company Equityholder Representative Expense Amount andbecomes unable to perform the Company Equityholder Representative’s responsibilities hereunder or resigns from such position, the Company Equityholders (acting by a written instrument signed by holders of Company Stock who held, as of immediately prior to the Effective Time, a majority (by voting power) of the then outstanding shares of Company Stock) shall select another representative to fill the vacancy of the Company Equityholder Representative, and such substituted representative shall be deemed to be the Company Equityholder Representative for all purposes of this Agreement. The Company Equityholder Representative may be removed only upon delivery of written notice to the Parent signed by Persons who, as of immediately prior to the Effective Time, held a majority (by voting power) of the then outstanding shares of Company Stock; provided that no such removal shall be effective until such time as a successor Company Equityholder Representative shall have been validly appointed hereunder. The Company Equityholder Representative shall provide the Parent prompt written notice of any replacement of the Company Equityholder Representative, including the identity and address of the new Company Equityholder Representative.
(e) The Company Equityholder Representative agrees not to, directly or indirectly, disclose the existence or terms of this Agreement or any other agreement contemplated hereby or any other information regarding this Agreement, the Merger or any of the other matters contemplated hereby, including information provided to the Company Equityholder Representative pursuant to the terms of this Agreement, except, in each case (i) to the extent such information is or becomes generally known to the public (other than as a result of a disclosure by the Company Equityholder Representative in breach of its obligations under this Section 2.4), (ii) if such amount is insufficient and to satisfy any such the extent required by applicable Law, (iii) to employees, advisors, agents or consultants of the Company Equityholder Representative Reimbursable Expense, from the first proceeds from any Future Payments otherwise available for distribution and to the Company Equityholders. Without limiting , in each case who have a need to know such information, and further provided that such persons are subject to confidentiality obligations with respect thereto, or (iv) in connection with, and only to the foregoingextent required for, enforcement of rights or defense of claims (including, in each case, on behalf of the Company Equityholders) under this Agreement and the transactions contemplated hereby and thereby.
(f) For all purposes of this Agreement:
(i) the Parent shall be entitled to rely conclusively on the instructions and decisions of the Company Equityholder Representative as to the settlement of any disputes or claims under this Agreement or any agreements ancillary hereto, including, the Exchange and Paying Agent Agreement, or any other actions required or permitted to be taken by the Company Equityholder Representative hereunder, and no party hereunder or any Company Equityholder shall have any claim, cause of action, objection or complaint against the Parent for any action taken by the Parent in reliance upon the instructions or decisions of the Company Equityholder Representative;
(ii) except as specifically set forth herein, no Company Equityholder shall have any right to bring any claim, cause of action, objection or complaint except through the Company Equityholder Representative, and the Company Equityholder Representative shall have the right sole authority to engage legal counsel act for, and other professional advisers to assist it enforce the rights of, all Company Equityholders in connection with this Agreement and the administration transactions contemplated hereby;
(iii) the provisions of this Section 2.4 are independent and severable, are irrevocable (subject only to Section 2.4(e)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Equityholder Representative’s duties hereundermay have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 2.4 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Equityholder, and any and all reasonable fees and expenses of such counsel and advisers shall be deemed Representative Reimbursable Expenses. In no event shall the Buyer or the Surviving Corporation (or any of their respective Affiliates) be obligated references in this Agreement to reimburse the a Company Equityholder Representative for any costs or expenses shall mean and include the successors to the rights of the each applicable Company Equityholder Representativehereunder, whether or not such costs or expenses constitute Representative Reimbursable Expenses.
(i) At the Effective Timepursuant to testamentary disposition, the Buyer shall (in accordance with Section 1.3(d)(v)) pay the Company Equityholder Representative Expense Amount to the Company Equityholder Representative, which Company Equityholder Representative Expense Amount shall be maintained by the Company Equityholder Representative in a segregated account. Upon the determination Laws of the Company Equityholder Representative that retaining any portion of the Company Equityholder Representative Expense Amount is no longer necessary, the Company Equityholder Representative shall deliver any then remaining portion of the Company Equityholder Representative Expense Amount (the “Company Equityholder Representative Account Payment”) to the Buyer for further payment in accordance with the Allocation Scheduledescent and distribution or otherwise.
Appears in 1 contract
Company Equityholder Representative. (a) To facilitate the administration By their execution of the transactions contemplated by this Agreement and the Escrow Agreement, including the resolution of any disputes relating to claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, the Company Equityholders, by the terms of this Agreement and their execution and delivery, as applicable, of the Written Consent, the Letter of Transmittal, an Option Surrender approval of the Merger and adoption of this Agreement and/or a Warrant Surrender their acceptance of any consideration pursuant to this Agreement, each Company Equityholder shall be deemed to have approved, and shall have approved, the appointment of, and hereby irrevocably (isubject only to Section 2.4(e)) designate appoints, the Company Equityholder Representative as their the representative, attorney-in-fact and agentagent of the Company Equityholders for all purposes in connection with delivering Post-Closing Disbursement Certificates pursuant to Section 2.1(e), (ii) authorize Section 2.4(c), Section 2.7(a), and Section 2.7(c), determining the Final Closing Adjustment pursuant to Section 2.6, amending or modifying the Closing Date Allocation Schedule pursuant to Section 2.7(a), matters relating to Contingent Payments pursuant to Section 2.8, receiving notices regarding Registration Statements pursuant to Section 6.10(d), addressing indemnification claims under Article VIII, handling tax matters under Section 9.3 and privilege matters pursuant to Section 12.11, in each case pursuant to this Agreement and any agreements ancillary hereto, including the Exchange and Paying Agent Agreement and the Escrow Agreement and in any related litigation or arbitration. In connection therewith, the Company Equityholder Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Company Equityholder Representative shall deem necessary or appropriate, and shall have the power and authority to:
(i) act for some or all of the Company Equityholders with regard to all matters pertaining to this Agreement and any agreements ancillary hereto, including the Exchange and Paying Agent Agreement or the Escrow Agreement;
(ii) act for the Company Equityholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Company Equityholder Representative deems necessary or appropriate in connection therewith, including delivering any update to or correction, amendment or modification of the Closing Date Allocation Schedule permitted by Section 2.7(a);
(iv) receive the Company Equityholder Representative Expense Amount and Amount, make payments from such amount, and give receipts for such payments;
(v) do or refrain from doing, on behalf of the Company Equityholders, any further act or deed that the Company Equityholder Representative Expense Amount and (iii) authorize deems necessary or appropriate in the Company Equityholder Representative Representative’s discretion relating to such matters, in each case as fully and completely as the Company Equityholders could do if personally present;
(vi) give and receive all notices required to be given or received by the Company Equityholders under this Agreement and any agreements ancillary hereto, including the Exchange and Paying Agent Agreement or the Escrow Agreement;
(vii) give any written direction to the Exchange and Paying Agent or the Escrow Agent;
(viii) agree to, to negotiate, resolve and settle any disputes or claims regarding the Closing Net Working Capital, achievement of the Milestones, negotiate and/or comply with the determination of the Milestone Payment Final Closing Adjustment Statement, the Final Closing Adjustment Items and the Final Closing Adjustment pursuant to Section 2.6, and to agree to, negotiate, comply with and/or enter into settlement and compromises regarding any Contingent Consideration pursuant to Section 2.8;
(ix) agree to, negotiate, enter into settlements and compromises and/or comply with arbitration awards and court orders with respect to claims for indemnification made by the Buyer under Article VIIVIII; and
(x) receive service of process in connection with any claims under this Agreement and any agreements ancillary hereto, including the Exchange and to take any and all additional action as is contemplated to be taken by or on their (or any of their) behalf or by the Company Equityholder Representative by the terms of this Paying Agent Agreement and/or the Escrow Agreement. .
(b) All such decisions and actions of the Company Equityholder Representative on behalf of the Company Equityholders shall be deemed to be facts ascertainable outside of this Agreement and shall be binding on the upon all Company Equityholders.
(b) In the event that Xxxxx X. Xxxxxxxx becomes unable to perform the Company Equityholder Representative’s responsibilities hereunder or resigns from such position, the position of Company Equityholder Representative shall thereafter be filled by a majority in interest of the Company Equityholders, voting together as a single class on an as-converted basis, and such substituted representative shall be deemed to be the Company Equityholder Representative for all purposes of this Agreement and the Escrow Agreement and the documents delivered pursuant hereto or thereto.
(c) Upon any replacement of the Company Equityholder Representative, the Company Equityholder Representative being replaced shall transfer, or shall deem to transfer, to the new Company Equityholder Representative the balance of any unexpended Company Equityholder Representative Expense Amount.
(d) All decisions and actions by the Company Equityholder Representative in connection with the transactions contemplated by this Agreement or the Escrow Agreement, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital or any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, shall be binding upon each Company Equityholder, and no Company Equityholder shall have the right to object, dissent, protest or otherwise contest the same.
(ec) Any decisionAt the Effective Time, act, consent, waiver or instruction of the Company Equityholder Representative in connection with this Agreement or the Escrow Agreement shall constitute a decision of all the Company Equityholders and shall be final, binding and conclusive upon each Company Equityholder, and the Buyer and shall pay the Surviving Corporation shall be entitled to rely conclusively on the decisions, acts, consents, waivers and instructions of the Company Equityholder Representative as to any determination relating to the transactions contemplated by this Agreement or the Escrow Agreement as being the decision, act, consent, waiver or instruction of every Company Equityholder, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital, any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII, the disbursement of all or any portion of the General Escrow Fund or the Adjustment Escrow Fund and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, all of which shall be final, conclusive and binding upon each Company Equityholder; no Person shall have any cause of action against the Buyer, the Surviving Corporation, or any of their respective directors, officers, employees, agents or Affiliates for any action taken by the Buyer or the Surviving Corporation in reliance upon any decision, act, consent, waiver or instruction of the Company Equityholder Representative; and the Buyer and the Surviving Corporation are each hereby relieved from any liability to any Person for any acts done by it in accordance with such decision, act, consent, waiver or instruction of the Company Equityholder Representative.
(f) None of the Buyer, the Surviving Corporation or any Company Equityholder shall have any cause of action against the Company Equityholder Representative for any action taken, decision made or instruction given by the Company Equityholder Representative under this Agreement or the Escrow Agreement, except in cases of Fraud, gross negligence or bad faith.
(g) The provisions of this Section 1.11 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that the Buyer or any Company Equityholder may have in connection with the transactions contemplated by this Agreement or the Escrow Agreement.
(h) The Company Equityholders shall, in accordance with their Pro Rata Share, severally, but not jointly, indemnify and reimburse the Company Equityholder Representative for any reasonable expense incurred without Fraud, gross negligence or bad faith on the part of the Company Equityholder Representative and arising out of or in connection with the acceptance or administration of its duties hereunder (“Representative Reimbursable Expenses”). Any such claim for indemnification shall be satisfied first from any then available portion of the remaining Company Equityholder Representative Expense Amount and, if such amount is insufficient to satisfy any such Representative Reimbursable Expense, from the first proceeds from any Future Payments otherwise available for distribution to the Company Equityholders. Without limiting Equityholder Representative, which will be used for the foregoingpurposes of paying directly, or reimbursing the Company Equityholder Representative shall have for, any third party expenses pursuant to this Agreement and the right to engage legal counsel and other professional advisers to assist it in the administration of Company Equityholder Representative’s duties hereunder, and any and all reasonable fees and expenses of such counsel and advisers shall be deemed Representative Reimbursable Expensesagreements ancillary hereto. In no event shall the Buyer or the Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse the Company Equityholder Representative for any costs such expenses. The Company Equityholders will not receive any interest or expenses of the Company Equityholder Representative, whether or not such costs or expenses constitute Representative Reimbursable Expenses.
(i) At the Effective Time, the Buyer shall (in accordance with Section 1.3(d)(v)) pay earnings on the Company Equityholder Representative Expense Amount and irrevocably transfer and assign to the Company Equityholder Representative, which Representative any ownership right that they may otherwise have had in any such interest or earnings. The Company Equityholder Representative Expense Amount shall will not be maintained by the Company Equityholder Representative in a segregated account. Upon the determination liable for any loss of the Company Equityholder Representative that retaining any portion principal of the Company Equityholder Representative Expense Amount is no longer necessaryother than as a result of its bad faith, gross negligence or willful misconduct. The Company Equityholder Representative will hold these funds separate from its corporate funds in a segregated account, 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 Company Equityholder Representative’s responsibilities, the Company Equityholder Representative shall deliver any then remaining portion of the Company Equityholder Representative Expense Amount (the “Company Equityholder Representative Account Payment”) to the Buyer Buyer, which will promptly pay (i) a portion thereof equal to the Pro Rata Share that is represented by each share of Company Stock converted pursuant to Section 2.1(c) to the Exchange and Paying Agent for further payment to the holder thereof, (ii) a portion thereof equal to the Pro Rata Share that is represented by each Company Warrant converted pursuant to Section 2.5 to the Exchange and Paying Agent for payment to the holder thereof, and (iii) a portion thereof equal to the Pro Rata Share that is represented by each Company Equity Award to the Surviving Corporation for payment to the holder thereof (which amount shall be paid by the Surviving Corporation to such holder, in accordance with Section 2.5, subject to any applicable withholding as provided in Section 2.9). The Company Equityholder Representative shall prior to any disbursement of funds for the Allocation Schedulebenefit of Company Equityholders pursuant to this Section 2.4(c), deliver to the Buyer a Post-Closing Disbursement Certificate in respect of such disbursement. The Company Equityholder Representative shall hold the Company Equityholder Representative Expense Amount for the benefit of all of the Company Equityholders, and the Company Equityholder Representative Expense Amount shall not be used for any other purpose not expressly set forth herein and shall not be available to the Buyer to satisfy any claims hereunder.
(d) The Company Equityholder Representative shall act for the Company Equityholders on all of the matters set forth in this Agreement, the Exchange and Paying Agent Agreement and the Escrow Agreement in the manner the Company Equityholder Representative believes to be in the best interest of the Company Equityholders. The Company Equityholder Representative is authorized to act on behalf of the Company Equityholders notwithstanding any dispute or disagreement among the Company Equityholders. In taking any action as Company Equityholder Representative, the Company Equityholder Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person whom the Company Equityholder Representative reasonably believes to be authorized thereunto. The Company Equityholder Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Company Equityholder Representative shall not be liable to any Company Equityholder for anything done, omitted or suffered in good faith by the Company Equityholder Representative based on such advice. The Company Equityholder Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Company Equityholder Representative. The Company Equityholder Representative will incur no liability of any kind to Company Equityholders with respect to any action or omission by the Company Equityholder Representative in connection with the Company Equityholder Representative’s services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Company Equityholder Representative’s bad faith, gross negligence or willful misconduct. Each Company Equityholder, severally and not jointly in accordance with its Pro Rata Share, will indemnify, defend and hold harmless the Company Equityholder 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 Company Equityholder 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 bad faith, gross negligence or willful misconduct of the Company Equityholder Representative, the Company Equityholder Representative will reimburse the Company Equityholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. If not paid directly to the Company Equityholder Representative by the Company Equityholders, any such Representative Losses may be recovered by the Company Equityholder Representative from (i) the Company Equityholder Representative Expense Amount and (ii) any Future Payments at such time as remaining amounts would otherwise be distributable to the Company Equityholders; provided, that while this section allows the Company Equityholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Equityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Company Equityholder Representative from seeking from the Company Equityholders any remedies available to it at law or otherwise. In no event will the Company Equityholder Representative be required to advance its own funds on behalf of the Company Equityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided by the Company Equityholders to the Company Equityholder Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Company Equityholder Representative or the termination of this Agreement. In no event will the Buyer or Surviving Corporation be responsible for any fees, costs or expenses of the Company Equityholder Representative.
(e) In the event the Company Equityholder Representative becomes unable to perform the Company Equityholder Representative’s responsibilities hereunder or resigns from such position, the Company Equityholders (acting by a written instrument signed by holders of Company Stock who held, as of immediately prior to the Effective Time, a majority (by voting power) of the then outstanding shares of Company Stock) shall select another representative to fill the vacancy of the Company Equityholder Representative, and such substituted representative shall be deemed to be the Company Equityholder Representative for all purposes of this Agreement. The Company Equityholder Representative may be removed only upon delivery of written notice to the Buyer signed by Persons who, as of immediately prior to the Effective Time, held a majority (by voting power) of the then outstanding shares of Company Stock; provided that no such removal shall be effective until such time as a successor Company Equityholder Representative shall have been validly appointed hereunder. The Company Equityholder Representative shall provide the Buyer prompt written notice of any replacement of the Company Equityholder Representative, including the identity and address of the new Company Equityholder Representative. Upon any replacement of the Company Equityholder Representative, the Company Equityholder Representative being replaced shall transfer to the new Company Equityholder Representative the balance of any unexpended Company Equityholder Representative Expense Amount.
(f) For all purposes of this Agreement:
(i) the Buyer shall be entitled to rely conclusively on the instructions and decisions of the Company Equityholder Representative as to the settlement of any disputes or claims under this Agreement or any agreements ancillary hereto, including the Exchange and Paying Agent Agreement or the Escrow Agreement, or any other actions required or permitted to be taken by the Company Equityholder Representative hereunder, and no party hereunder or any Company Equityholder shall have any cause of action against the Buyer for any action taken by the Buyer in reliance upon the instructions or decisions of the Company Equityholder Representative;
(ii) the provisions of this Section 2.4 are independent and severable, are irrevocable (subject only to Section 2.4(e)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Equityholder may have in connection with the transactions contemplated by this Agreement; and
(iii) the provisions of this Section 2.4 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Equityholder, and any references in this Agreement to a Company Equityholder shall mean and include the successors to the rights of each applicable Company Equityholder hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
Appears in 1 contract
Company Equityholder Representative. (a) To facilitate the administration By their execution of the transactions contemplated by this Agreement and the Escrow Agreement, including the resolution of any disputes relating to claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, the Company Equityholders, by the terms of this Agreement and their execution and delivery, as applicable, of the Written Consent, the Letter of Transmittal, an Option Surrender approval of the Merger and adoption of this Agreement and/or a Warrant Surrender their acceptance of any consideration pursuant to this Agreement, the Company Equityholders hereby irrevocably (isubject only to Section 2.4(d)) designate appoint the Company Equityholder Representative as their the representative, attorney-in-fact and agentagent of the Company Equityholders in connection with the transactions contemplated by this Agreement, (ii) authorize the Paying Agent Agreement and the Escrow Agreement and in any litigation or arbitration involving this Agreement, the Paying Agent Agreement or the Escrow Agreement. In connection therewith, the Company Equityholder Representative is authorized to receive do or refrain from doing all further acts and things, and to execute all such documents as the Company Equityholder Representative Expense Amount shall deem necessary or appropriate, and make payments from shall have the power and authority to:
(i) act for some or all of the Company Equityholders with regard to all matters pertaining to this Agreement, the Paying Agent Agreement or the Escrow Agreement, except with respect to the stockholder vote, if any, required by Section 6.7 hereof;
(ii) act for the Company Equityholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Company Equityholder Representative Expense Amount deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement, including delivering any update to or correction, amendment or modification of the Closing Date Allocation Schedule permitted by Section 2.6(a);
(iv) receive funds, make payments of funds and give receipts for funds;
(iiiv) authorize do or refrain from doing, on behalf of the Company Equityholders, any further act or deed that the Company Equityholder Representative deems necessary or appropriate in the Company Equityholder Representative’s discretion relating to the subject matter of this Agreement, the Paying Agent Agreement or the Escrow Agreement, in each case as fully and completely as the Company Equityholders could do if personally present;
(vi) give and receive all notices required to be given or received by the Company Equityholders under this Agreement, the Paying Agent Agreement and or the Escrow Agreement;
(vii) give any written direction to the Paying Agent or the Escrow Agent;
(viii) agree to, to negotiate, resolve enter into settlements and settle any disputes or claims regarding the Closing Net Working Capital, achievement of the Milestones, the determination of the Milestone Payment compromises and/or comply with arbitration awards and any court orders with respect to claims for indemnification made by the Buyer under Article VIIVIII; and
(ix) receive service of process in connection with any claims under this Agreement, and to take any and all additional action as is contemplated to be taken by or on their (or any of their) behalf or by the Company Equityholder Representative by the terms of this Paying Agent Agreement and/or the Escrow Agreement. .
(b) All such decisions and actions of the Company Equityholder Representative on behalf of the Company Equityholders shall be deemed to be facts ascertainable outside of this Agreement and shall be binding on the upon all Company Equityholders.
(b) In the event that Xxxxx X. Xxxxxxxx becomes unable to perform the Company Equityholder Representative’s responsibilities hereunder or resigns from such position, the position of Company Equityholder Representative shall thereafter be filled by a majority in interest of the Company Equityholders, voting together as a single class on an as-converted basis, and such substituted representative shall be deemed to be the Company Equityholder Representative for all purposes of this Agreement and the Escrow Agreement and the documents delivered pursuant hereto or thereto.
(c) Upon any replacement of the Company Equityholder Representative, the Company Equityholder Representative being replaced shall transfer, or shall deem to transfer, to the new Company Equityholder Representative the balance of any unexpended Company Equityholder Representative Expense Amount.
(d) All decisions and actions by the Company Equityholder Representative in connection with the transactions contemplated by this Agreement or the Escrow Agreement, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital or any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Equityholder Representative under this Agreement or the Escrow Agreement, shall be binding upon each Company Equityholder, and no Company Equityholder shall have the right to object, dissent, protest or otherwise contest the same.
(ec) Any decisionThe Company Equityholder Representative shall act for the Company Equityholders on all of the matters set forth in this Agreement, act, consent, waiver or instruction of the Paying Agent Agreement and the Escrow Agreement in the manner the Company Equityholder Representative believes to be in connection with this Agreement or the Escrow Agreement shall constitute a decision best interest of all the Company Equityholders. The Company Equityholder Representative is authorized to act on behalf of the Company Equityholders and shall be finalnotwithstanding any dispute or disagreement among the Company Equityholders. In taking any action as Company Equityholder Representative, binding and conclusive upon each Company Equityholder, and the Buyer and the Surviving Corporation shall be entitled to rely conclusively on the decisions, acts, consents, waivers and instructions of the Company Equityholder Representative as may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person whom the Company Equityholder Representative reasonably believes to be authorized thereunto. The Company Equityholder Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Company Equityholder Representative shall not be liable to any determination relating to the transactions contemplated by this Agreement Company Equityholder for anything done, omitted or the Escrow Agreement as being the decision, act, consent, waiver or instruction of every Company Equityholder, including the resolution and disposition of any disputes regarding the determination of Closing Net Working Capital, any Milestone Payment or the achievement of any Milestone and claims for indemnification pursuant to Article VII, the disbursement of all or any portion of the General Escrow Fund or the Adjustment Escrow Fund and any other actions required or permitted to be taken suffered in good faith by the Company Equityholder Representative under based on such advice. The Company Equityholder Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or the Escrow Agreement, all of which obligations shall be final, conclusive and binding upon each Company Equityholder; no Person shall have any cause of action read into this Agreement against the Buyer, the Surviving Corporation, or any of their respective directors, officers, employees, agents or Affiliates for any action taken by the Buyer or the Surviving Corporation in reliance upon any decision, act, consent, waiver or instruction of the Company Equityholder Representative; and the Buyer and the Surviving Corporation are each hereby relieved from . The Company Equityholder Representative shall not have any liability to any Person for any acts done by it in accordance with such decision, act, consent, waiver or instruction of the Company Equityholder Representative.
(f) None of the Buyer, the Surviving Corporation Equityholders for any act done or any Company Equityholder shall have any cause of action against the omitted hereunder as Company Equityholder Representative for any action taken, decision made or instruction given while acting in good faith. The Company Equityholder Representative shall be indemnified by the Company Equityholder Representative under this Agreement Equityholders from and against any loss, liability or the Escrow Agreement, except in cases of Fraud, gross negligence or bad faith.
(g) The provisions of this Section 1.11 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that the Buyer or any Company Equityholder may have in connection with the transactions contemplated by this Agreement or the Escrow Agreement.
(h) The Company Equityholders shall, in accordance with their Pro Rata Share, severally, but not jointly, indemnify and reimburse the Company Equityholder Representative for any reasonable expense incurred without Fraud, gross negligence or bad in good faith on the part of the Company Equityholder Representative and arising out of or in connection with the acceptance or administration of its the Company Equityholder Representative’s duties hereunder (“Representative Reimbursable Expenses”)hereunder. Any such claim for indemnification shall be satisfied first from any then available portion of the remaining Company Equityholder Representative Expense Amount and, if such amount is insufficient to satisfy any such Representative Reimbursable Expense, from the first proceeds from any Future Payments otherwise available for distribution to the Company Equityholders. Without limiting Equityholders or by a claim against the foregoing, Company Equityholders (with each Company Equityholder liable for the Participating Pro Rata Share of any such claim that is represented by such Company Equityholder’s Company Stock or Company Options).
(d) In the event the Company Equityholder Representative shall have becomes unable to perform the right to engage legal counsel and other professional advisers to assist it in the administration of Company Equityholder Representative’s duties hereunderresponsibilities hereunder or resigns from such position, and any and all reasonable fees and expenses of such counsel and advisers shall be deemed Representative Reimbursable Expenses. In no event shall the Buyer or the Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse the Company Equityholder Representative for any costs or expenses Equityholders (acting by a written instrument signed by holders of Company Stock who held, as of immediately prior to the Effective Time, a majority (by voting power) of the then outstanding shares of Company Stock) shall select another representative to fill the vacancy of the Company Equityholder Representative, whether or not and such costs or expenses constitute substituted representative shall be deemed to be the Company Equityholder Representative Reimbursable Expenses.
(i) At for all purposes of this Agreement. The Company Equityholder Representative may be removed only upon delivery of written notice to the Buyer signed by Persons who, as of immediately prior to the Effective Time, held a majority (by voting power) of the Buyer shall (in accordance with Section 1.3(d)(v)) pay the then outstanding shares of Company Stock. The Company Equityholder Representative Expense Amount to shall provide the Buyer prompt written notice of any replacement of the Company Equityholder Representative, which including the identity and address of the new Company Equityholder Representative.
(e) For all purposes of this Agreement:
(i) the Buyer shall be entitled to rely conclusively on the instructions and decisions of the Company Equityholder Representative Expense Amount shall as to the settlement of any disputes or claims under this Agreement, the Paying Agent Agreement or the Escrow Agreement, or any other actions required or permitted to be maintained taken by the Company Equityholder Representative hereunder, and no party hereunder or any Company Equityholder shall have any cause of action against the Buyer for any action taken by the Buyer in a segregated account. Upon reliance upon the determination instructions or decisions of the Company Equityholder Representative Representative;
(ii) the provisions of this Section 2.4 are independent and severable, are irrevocable (subject only to Section 2.4(d)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that retaining any portion of the Company Equityholder Representative Expense Amount is no longer necessarymay have in connection with the transactions contemplated by this Agreement; and
(iii) the provisions of this Section 2.4 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Equityholder, and any references in this Agreement to a Company Equityholder shall mean and include the successors to the rights of each applicable Company Equityholder hereunder, whether pursuant to testamentary disposition, the Company Equityholder Representative shall deliver any then remaining portion Laws of the Company Equityholder Representative Expense Amount (the “Company Equityholder Representative Account Payment”) to the Buyer for further payment in accordance with the Allocation Scheduledescent and distribution or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Demandware Inc)
