Company Stockholder Representative. (a) By their execution of the Letter of Transmittal, approval of the Merger and adoption of this Agreement and/or their acceptance of any consideration pursuant to this Agreement or the CVR Agreement, the Pre-Reverse Split Company Stockholders and the Company Stockholders hereby irrevocably (subject only to Section 3.9(e)) appoint the Company Stockholder Representative as the representative, attorney-in-fact and agent of the Pre-Reverse Split Company Stockholders and the Company Stockholders for all purposes in connection with the transactions contemplated by this Agreement and any other agreements ancillary hereto and in any litigation or arbitration involving this Agreement. In connection therewith, the Company Stockholder Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Company Stockholder Representative shall deem necessary or appropriate, and shall have the power and authority to: (i) act for some or all of the Pre-Reverse Split Company Stockholders and the Company Stockholders with regard to all matters pertaining to this Agreement or any other agreements ancillary hereto; (ii) act for the Pre-Reverse Split Company Stockholders and the Company Stockholders to transact matters of litigation; (iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Company Stockholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement, including delivering any update to or correction, amendment or modification of the Closing Date Allocation Schedule permitted by this Agreement; (iv) do or refrain from doing, on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders, any further act or deed that the Company Stockholder Representative deems necessary or appropriate in the Company Stockholder Representative’s discretion relating to the subject matter of this Agreement, in each case as fully and completely as the Pre-Reverse Split Company Stockholders and the Company Stockholders could do if personally present; (v) give and receive all notices required to be given or received by the Pre-Reverse Split Company Stockholders and the Company Stockholders under this Agreement; (vi) 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 Buyer under Article XI; and (vii) receive service of process in connection with any claims under this Agreement or any ancillary agreement contemplated hereby. (b) All decisions and actions of the Company Stockholder Representative on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders shall be deemed to be facts ascertainable outside of this Agreement and shall be binding upon all Pre-Reverse Split Company Stockholders and Company Stockholders, and no Pre-Reverse Split Company Stockholder or Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same. (c) At the First Effective Time, Buyer shall pay an amount in cash equal to $25,000 (the “Company Stockholder Representative Expense Amount”) to the Company Stockholder Representative, which Company Stockholder Representative Expense Amount shall be held by the Company Stockholder Representative in a segregated account (the “Company Stockholder Representative Expense Fund”). The Company Stockholder Representative Expense Fund will be used solely for the purposes of paying directly, or reimbursing the Company Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Company Stockholders will not receive any interest or earnings on the Company Stockholder Representative Expense Fund and irrevocably transfer and assign to the Company Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Company Stockholder Representative will not be liable for any loss of principal of the Company Stockholder Representative Expense Fund other than as a result of its gross negligence or willful misconduct. The Company Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Company Stockholder Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing. In no event shall Buyer or the Final Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse the Company Stockholder Representative for any expenses payable from the Company Stockholder Representative Expense Fund. Upon the determination of the Company Stockholder Representative that retaining any portion of the Company Stockholder Representative Expense Fund is no longer necessary, or as directed by the advisory committee to the Company Stockholder Representative as set forth in the engagement letter between the Company and the Company Stockholder Representative, the Company Stockholder Representative shall deliver any then remaining portion of the Company Stockholder Representative Expense Fund to Buyer, after which Buyer shall, subject to Section 3.14, promptly issue to each Company Stockholder a number of Buyer Ordinary Shares with a value, based on the Buyer Share Value, equal to such Company Stockholder’s Pro Rata Share of such remaining portion of the Company Stockholder Representative Expense Fund. (d) The Company Stockholder Representative shall act for the Pre-Reverse Split Company Stockholders and the Company Stockholders on all of the matters set forth in this Agreement and any other agreements ancillary hereto in the manner the Company Stockholder Representative believes to be in the best interest of the Pre-Reverse Split Company Stockholders and the Company Stockholders. The Company Stockholder Representative is authorized to act on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders notwithstanding any dispute or disagreement among the Pre-Reverse Split Company Stockholders or the Company Stockholders. In taking any action as Company Stockholder Representative, the Company Stockholder 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 Stockholder Representative reasonably believes to be authorized thereunto. The Company Stockholder Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Company Stockholder Representative shall not be liable to any Pre-Reverse Split Company Stockholder or Company Stockholder for anything done, omitted or suffered in good faith by the Company Stockholder Representative based on such advice. The Company Stockholder 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 Stockholder Representative. The Company Stockholder Representative shall not have any liability to any of the Company Stockholders for any act done or omitted hereunder as Company Stockholder Representative while acting in good faith and pursuant to the engagement letter between the Company and the Company Stockholder Representative. The Company Stockholder Representative shall be indemnified by the Pre-Reverse Split Company Stockholders and the Company Stockholders from and against any loss, liability or expense incurred in good faith on the part of the Company Stockholder Representative and arising out of or in connection with the acceptance or administration of the Company Stockholder Representative’s duties hereunder, in each case as such loss, liability or expense is suffered or incurred. Any such claim for indemnification shall be satisfied first from any then available portion of the remaining Company Stockholder Representative Expense Fund and, if such amount is insufficient to satisfy any such loss, liability or expense, from the first proceeds from any payments to be made by Buyer pursuant to this Agreement or the CVR Agreement otherwise available for distribution to the Pre-Reverse Split Company Stockholders and/or the Company Stockholders or by a claim against the Company Stockholders (with each Company Stockholder liable for the Pro Rata Share of any such claim that is represented by such Company Stockholder’s Company Capital Stock). Notwithstanding anything in this Agreement to the contrary, nothing herein shall relieve the Company Stockholders from their obligation to promptly pay such losses, liabilities and expenses as they are suffered or incurred, nor does it prevent the Company Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Company Stockholder Representative be required to advance its own funds on behalf of the Company Stockholders 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 Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Company Stockholder Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Company Stockholder Representative or the termination of this Agreement. (e) In the event the Company Stockholder Representative becomes unable to perform the Company Stockholder Representative’s responsibilities hereunder or resigns from such position, the Company Stockholder Representative shall select another representative to fill the vacancy of the Company Stockholder Representative, and upon such substituted representative’s written agreement to assume the rights and responsibilities of the Company Stockholder Representative hereunder, such substituted representative shall be deemed to be the Company Stockholder Representative for all purposes of this Agreement. Except as contemplated by the previous sentence, the Company Stockholder Representative may be removed only upon delivery of written notice to Bxxxx signed by Company Stockholders who, as of immediately prior to the First Effective Time, held a majority (by voting power) of the then outstanding shares of Company Capital Stock; provided that no such removal shall be effective until such time as a successor Company Stockholder Representative shall have been validly appointed hereunder. The Company Stockholder Representative shall provide Buyer prompt written notice of any replacement of the Company Stockholder Representative, including the identity and address of the new Company Stockholder Representative. Upon any replacement of the Company Stockholder Representative, the Company Stockholder Representative being replaced shall transfer to the new Company Stockholder Representative the balance of any unexpended Company Stockholder Representative Expense Fund. (f) The Company Stockholder 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 Stockholder 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 Stockholder Representative without a breach of its obligations under this Section 3.9(f)), (ii) as required by applicable Law, (iii) to employees, advisors, agents or consultants of the Company Stockholder Representative (if applicable) and to the Company Stockholders, 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) is in connection with, and only to the extent required for, enforcement of rights or defense of claims (including, in each case, on behalf of the Company Stockholders) under this Agreement and the transactions contemplated hereby and thereby. (g) For all purposes of this Agreement: (i) Buyer shall be entitled to rely conclusively on the instructions and decisions of the Company Stockholder Representative as to the settlement of any disputes or claims under this Agreement, or any ancillary agreement contemplated hereby, or any other actions required or permitted to be taken by the Company Stockholder Representative hereunder, and no party hereunder or any Company Stockholder shall have any cause of action against Buyer for any action taken by Buyer in reliance upon the instructions or decisions of the Company Stockholder Representative; (ii) the provisions of this Section 3.9 are independent and severable, are irrevocable (subject only to Section 3.9(e)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement; (iii) except as specifically set forth herein, no Company Stockholder will have any right to bring any claim, cause of action, objection or complaint except through the Company Stockholder Representative, and the Company Stockholder Representative shall have the sole authority to act for, and enforce the rights of, all Company Stockholders in connection with this Agreement and the transactions contemplated hereby; and (iv) the provisions of this Section 3.9 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of each applicable Company Stockholder hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
Appears in 4 contracts
Samples: Merger Agreement (Telix Pharmaceuticals LTD), Merger Agreement (Telix Pharmaceuticals LTD), Merger Agreement (Telix Pharmaceuticals LTD)
Company Stockholder Representative. To facilitate the administration of the transactions contemplated by this Agreement, including the resolution of any disputes relating to, the Earn-Out Amount (a) By if any), the Revised Closing Net Working Capital Adjustment (if any), and claims for indemnification pursuant to Article VI, and any other actions required or permitted to be taken by the Company Stockholder Representative under this Agreement, the Buyer and the Company, by their execution and delivery of this Agreement, and the stockholders of the Letter of Transmittal, approval Company and Persons otherwise having the right to direct the voting of the Merger Company’s stock pursuant to the Common Voting Trust Agreement or the Class A-1 Voting Trust Agreement, and the adoption of this Agreement and/or their acceptance of any consideration pursuant to this Agreement or by stockholders constituting the CVR AgreementRequisite Stockholder Consent, the Pre-Reverse Split Company Stockholders and the Company Stockholders hereby irrevocably (subject only to Section 3.9(e)x) appoint designate the Company Stockholder Representative as the representative, attorney-in-fact and agent of the Pre-Reverse Split each Company Stockholders Stockholder and the Company Stockholders for all purposes in connection with the transactions contemplated by this Agreement and any other agreements ancillary hereto and in any litigation or arbitration involving this Agreement. In connection therewith, (y) authorize the Company Stockholder Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Company Stockholder Representative shall deem necessary or appropriate, and shall have the power and authority to:
(i) act for some or all of the Pre-Reverse Split Company Stockholders and the Company Stockholders with regard to all matters pertaining to this Agreement or any other agreements ancillary hereto;
(ii) act for the Pre-Reverse Split Company Stockholders and the Company Stockholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Company Stockholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement, including delivering any update to or correction, amendment or modification of the Closing Date Allocation Schedule permitted by this Agreement;
(iv) do or refrain from doing, on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders, any further act or deed that the Company Stockholder Representative deems necessary or appropriate in the Company Stockholder Representative’s discretion relating to the subject matter of this Agreement, in each case as fully and completely as the Pre-Reverse Split Company Stockholders and the Company Stockholders could do if personally present;
(v) give and receive all notices required to be given under this Agreement, and to take any and all additional action as is necessary, convenient, appropriate or received contemplated to be taken by or on their behalf or by the Pre-Reverse Split Company Stockholders Stockholder Representative in connection with the Company Stockholder Representative’s rights, duties and obligations pursuant to this Agreement and/or the Escrow Agreement.
(a) In the event that the Company Stockholder Representative becomes unwilling or unable to perform his, her or its responsibilities hereunder or resigns from such position, the Company Stockholders under (acting by written consent by a majority in interest of the Company Stockholders, voting together as a single class) shall select another representative to fill the vacancy of the Company Stockholder Representative named in this Agreement;
(vi) agree to, negotiate, enter into settlements and compromises and/or comply with arbitration awards such substituted representative shall succeed the former Company Stockholder Representative and court orders with respect be deemed to claims be the Company Stockholder Representative for indemnification made by Buyer under Article XI; and
(vii) receive service all purposes of process in connection with any claims under this Agreement or any ancillary agreement contemplated herebyand the Escrow Agreement and the documents delivered pursuant hereto and thereto.
(b) All decisions and actions of by the Company Stockholder Representative on behalf in connection with the transactions contemplated by this Agreement, including (i) the determination and calculation of, and resolution of any disputes relating to, the PreEarn-Reverse Split Company Stockholders Out Amount (if any) or the Revised Closing Net Working Capital Adjustment (if any), (ii) the resolution and disposition of any claims for indemnification pursuant to Article VI, and (iii) any other actions required or permitted to be taken by the Company Stockholders shall be deemed to be facts ascertainable outside of Stockholder Representative under this Agreement and Agreement, shall be binding upon all Pre-Reverse Split each Company Stockholders and Company StockholdersStockholder, and no Pre-Reverse Split Company Stockholder or Company Stockholder shall have the right to object, dissent, protest or otherwise contest the samesame or to revoke the agency of the Company Stockholder Representative.
(c) At Any decision, act, consent, waiver or instruction of the First Effective Time, Buyer shall pay an amount in cash equal to $25,000 (the “Company Stockholder Representative Expense Amount”) in connection with this Agreement shall constitute a decision of all the Company Stockholders and shall be final, binding and conclusive upon each Company Stockholder, and the Buyer shall be entitled to rely conclusively on the decisions, acts, consents, waivers and instructions of the Company Stockholder RepresentativeRepresentative as to any determination relating to the transactions contemplated by this Agreement as being the decision, which act, consent, waiver or instruction of every Company Stockholder Representative Expense Stockholder, including without limitation (i) the determination and calculation of, and resolution of any disputes relating to, the Earn-Out Amount shall (if any) or the Revised Closing Net Working Capital Adjustment (if any), (ii) the resolution and disposition of any claims for indemnification pursuant to Article VI, and (iii) any other actions required or permitted to be held taken by the Company Stockholder Representative in a segregated account (under this Agreement; no Person shall have any cause of action against the “Company Stockholder Representative Expense Fund”). The Company Stockholder Representative Expense Fund will be used solely for Buyer, the purposes of paying directlySurviving Corporation, or reimbursing any of their respective directors, officers, employees, agents or affiliates for any action taken by the Buyer in reliance upon any decision, act, consent, waiver or instruction of the Company Stockholder Representative for, any third party expenses pursuant to this Agreement Representative; and the agreements ancillary hereto. The Company Stockholders will not receive Buyer is hereby relieved from any interest liability to any Person for any acts done by it in accordance with such decision, act, consent, waiver or earnings on instruction of the Company Stockholder Representative Expense Fund Representative.
(d) All actions, omissions, decisions, consents, waivers and irrevocably transfer and assign to the Company Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Company Stockholder Representative will not be liable for any loss of principal instructions of the Company Stockholder Representative Expense Fund other than as a result of its gross negligence or willful misconduct. The shall be conclusive and binding upon Company Stockholders and neither the Buyer nor any Company Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or shall have any other corporate purposes and will not voluntarily make these funds available to its creditors in the event cause of bankruptcy. For tax purposes, the Company Stockholder Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing. In no event shall Buyer or the Final Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse action against the Company Stockholder Representative for any expenses payable from action taken, decision made or consent, waiver or instruction given by the Company Stockholder Representative Expense Fund. Upon the determination of the Company Stockholder Representative that retaining any portion of the Company Stockholder Representative Expense Fund is no longer necessaryunder this Agreement, except for fraud or as directed willful misconduct by the advisory committee to the Company Stockholder Representative as set forth in the engagement letter between the Company and the Company Stockholder Representative, the Company Stockholder Representative shall deliver any then remaining portion of the Company Stockholder Representative Expense Fund to Buyer, after which Buyer shall, subject to Section 3.14, promptly issue to each Company Stockholder a number of Buyer Ordinary Shares with a value, based on the Buyer Share Value, equal to such Company Stockholder’s Pro Rata Share of such remaining portion of the Company Stockholder Representative Expense Fund.
(de) The provisions of this Section 1.15 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 Stockholder may have in connection with the transactions contemplated by this Agreement.
(f) The Company Stockholder Representative shall act for the Pre-Reverse Split Company Stockholders and the Company Stockholders on all of the matters set forth in this Agreement and any other agreements ancillary hereto in the manner be entitled to seek reimbursement from the Company Stockholder Representative believes to be in the best interest of the Pre-Reverse Split Company Stockholders and the Company Stockholders. The Company Stockholder Representative is authorized to act on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders notwithstanding any dispute or disagreement among the Pre-Reverse Split Company Stockholders or the Company Stockholders. In taking any action as Company Stockholder Representative, the Company Stockholder 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 Stockholder Representative reasonably believes to be authorized thereunto. The Company Stockholder Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Company Stockholder Representative shall not be liable to any Pre-Reverse Split Company Stockholder or Company Stockholder for anything done, omitted or suffered in good faith by the Company Stockholder Representative based on such advice. The Company Stockholder 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 Stockholder Representative. The Company Stockholder Representative shall not have any liability to any of the Company Stockholders Escrow Fund for any act done reasonable expenses incurred without gross negligence or omitted hereunder as Company Stockholder Representative while acting in good faith and pursuant to the engagement letter between the Company and the Company Stockholder Representative. The Company Stockholder Representative shall be indemnified by the Pre-Reverse Split Company Stockholders and the Company Stockholders from and against any loss, liability or expense incurred in good bad faith on the part of the Company Stockholder Representative and arising out of or in connection with the acceptance or administration of the Company Stockholder Representative’s duties hereunder (“Representative Reimbursable Expenses”). Without limiting the foregoing, the Company Stockholder Representative shall have the right to engage legal counsel and other professional advisers to assist it in the administration of the Company Stockholder Representative’s duties hereunder, in each case as and any and all reasonable fees and expenses of such counsel and advisers shall be deemed Representative Reimbursable Expenses.
(g) The Company Stockholder Representative shall be indemnified by the Company Stockholders for, and shall be held harmless against, any loss, liability or expense is suffered or incurred. Any such claim for indemnification shall be satisfied first from any then available portion of incurred by the remaining Company Stockholder Representative Expense or any of its Affiliates and any of their respective partners, directors, officers, employees, agents, stockholders, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons, in each case relating to the Company Stockholder Representative’s conduct as the Company Stockholder Representative, other than losses, liabilities or expenses resulting from the Company Stockholder Representative’s gross negligence or willful misconduct in connection with its performance under this Agreement and the Escrow Agreement. This indemnification shall survive the termination of this Agreement. The costs of such indemnification (including the costs and expenses of enforcing this right of indemnification) may be paid from the Company Stockholder Representative Fund and, if (and in no event shall such amount costs be paid from either the Escrow Fund or the Working Capital Escrow Fund prior to the time such amounts are otherwise distributable to the Company Stockholders). In the event it is insufficient to satisfy any such finally adjudicated that a loss, liability or expenseexpense or any portion thereof was primarily caused by the gross negligence or willful misconduct of the Company Stockholder Representative, from the first proceeds from any payments to be made by Buyer pursuant to this Agreement or the CVR Agreement otherwise available for distribution to the Pre-Reverse Split Company Stockholders and/or Stockholder Representative will reimburse the Company Stockholders the amount of such indemnified loss, liability or expense attributable to such gross negligence or willful misconduct. With the prior written consent of Prism Venture Partners IV, L.P., any such losses, liabilities or expenses may be recovered by a claim against the Company Stockholder Representative from (i) the funds in the Company Stockholder Representative Fund, (ii) the amounts in the Escrow Funds otherwise distributable to the Company Stockholders pursuant to the terms hereof and the Escrow Agreement at the time of distribution, and (with each iii) from any Net Earn-Out Amounts actually payable to the Company Stockholders pursuant to written instructions delivered by the Company Stockholder liable for the Pro Rata Share of any such claim that is represented by such Company Stockholder’s Company Capital Stock). Notwithstanding anything in this Agreement Representative to the contraryBuyer; provided that while this section allows the Company Stockholder Representative to be paid from the Company Stockholder Representative Escrow Fund, nothing herein shall the Escrow Fund and the Earn-Out Amounts, this does not relieve the Company Stockholders from their obligation to promptly pay such losses, liabilities and expenses Representative Reimbursable Expenses as they such Representative Reimbursable Expenses are suffered or incurred, nor does it prevent the Company Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will The Company Stockholder Representative may, in all questions arising under this Agreement and the Escrow Agreement, rely on the advice of counsel and for anything done, omitted or suffered in good faith by the Company Stockholder Representative be required to advance its own funds on behalf of the Company Stockholders 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 Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Company Stockholder Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Company Stockholder Representative or the termination of this Agreement.
(e) In the event the Company Stockholder Representative becomes unable to perform the Company Stockholder Representative’s responsibilities hereunder or resigns from accordance with such positionadvice, the Company Stockholder Representative shall select another representative not be liable to fill the vacancy Company Stockholders or the Escrow Agent or any other Person
(h) The Buyer shall, and cause the Surviving Corporation and their respective direct and indirect subsidiaries to, provide the Company Stockholder Representative with reasonable access (including electronic access, to the extent available) to information and documents concerning any disputes relating to the Earn-Out Amount (if any), the Revised Closing Net Working Capital Adjustment (if any) and claims for indemnification pursuant to Article VI and which is in the possession, custody or control of the Buyer or the Surviving Corporation or any of their respective direct or indirect subsidiaries and the reasonable assistance of the officers and employees of the Buyer, the Surviving Corporation or any of their respective direct or indirect subsidiaries for purposes of performing the Company Stockholder Representative, ’s duties under this Agreement or the Escrow Agreement and upon such substituted representativeexercising the Company Stockholder Representative’s written agreement to assume rights under this Agreement and the rights and responsibilities of Escrow Agreement; provided that the Company Stockholder Representative hereundershall treat confidentially and not, such substituted representative shall be deemed except in connection with enforcing its rights and otherwise performing its responsibilities under this Agreement and the Escrow Agreement, disclose any nonpublic information from or concerning any of the foregoing to be the Company Stockholder Representative for all purposes of this Agreement. Except as contemplated by the previous sentenceanyone, except that (i) the Company Stockholder Representative may be removed only upon delivery of written notice disclose to Bxxxx signed by Company Stockholders whoits employees, independent contractors, legal counsel, accountants, representatives, agents and other advisors and skilled Persons (for the same limited purposes as of immediately prior to the First Effective Time, held a majority (by voting power) of the then outstanding shares of Company Capital Stock; provided that no such removal shall be effective until such time as a successor Company Stockholder Representative shall have been validly appointed hereunder. The Company Stockholder Representative shall provide Buyer prompt written notice of any replacement of the Company Stockholder Representative, including the identity and address of the new Company Stockholder Representative. Upon any replacement of the Company Stockholder Representative, which the Company Stockholder Representative being replaced shall transfer may use such information set forth in this Section 1.15(h)) any information disclosed to the new such Company Stockholder Representative pursuant to this Section 1.15(h), provided that all such Persons agree to treat such information confidentially, (ii) the balance of any unexpended Company Stockholder Representative Expense Fund.
(for such other Person to whom information is disclosed pursuant to clause (i) The Company Stockholder Representative agrees not toabove) may disclose in any proceeding relating to a claim for indemnification under Article VI or a dispute relating to Section 1.13 or Section 1.14 (or, directly or indirectlyin either case, disclose the existence or terms of this Agreement or discussions in preparation therefor) 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 disclosed to the Company Stockholder 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 Stockholder Representative without a breach of its obligations under this Section 3.9(f)1.15(h), (ii) as required by applicable Law, (iii) to employees, advisors, agents or consultants of the Company Stockholder Representative (if applicable) and to the Company Stockholders, 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) is in connection with, and only to the extent required for, enforcement of rights or defense of claims (including, in each case, on behalf of the Company Stockholders) under this Agreement and the transactions contemplated hereby and thereby.
(g) For all purposes of this Agreement:
(i) Buyer shall be entitled to rely conclusively on the instructions and decisions of the Company Stockholder Representative as to the settlement of any disputes or claims under this Agreement, or any ancillary agreement contemplated hereby, or any other actions required or permitted to be taken by the Company Stockholder Representative hereunder, and no party hereunder or any Company Stockholder shall have any cause of action against Buyer for any action taken by Buyer in reliance upon the instructions or decisions of the Company Stockholder Representative;
(ii) the provisions of this Section 3.9 are independent and severable, are irrevocable (subject only to Section 3.9(e)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement;
(iii) except as specifically set forth herein, no Company Stockholder will have any right to bring any claim, cause of action, objection or complaint except through the Company Stockholder Representative, and the Company Stockholder Representative shall have the sole authority use commercially reasonable efforts to act forobtain, if available, an appropriate protective order or other reliable assurance that confidential treatment will be accorded such information, and enforce (iii) the rights of, all Company Stockholder Representative may disclose to the Company Stockholders in connection with this Agreement and any information disclosed to the transactions contemplated hereby; and
(iv) the provisions of Company Stockholder Representative pursuant to this Section 3.9 shall be binding upon the executors1.15(h), heirs, legal representatives, personal representatives, successor trustees and successors of each provided that such Company Stockholder, and any references in this Agreement Stockholders agree to a Company Stockholder shall mean and include the successors to the rights of each applicable Company Stockholder hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwisetreat such information confidentially.
Appears in 2 contracts
Samples: Merger Agreement (Skyworks Solutions, Inc.), Merger Agreement (Skyworks Solutions, Inc.)
Company Stockholder Representative. (a) By their approval of the Merger, this Agreement and the transactions contemplated hereby by the Company Stockholders, by execution of this Agreement by the Company Stockholders, and pursuant to the terms of the Letter of Transmittal, approval of the Merger and adoption of this Agreement and/or their acceptance of any consideration pursuant to this Agreement or the CVR Agreement, the Pre-Reverse Split Company Stockholders and the Company Stockholders shall and hereby do irrevocably make, constitute and appoint or, as applicable are deemed to have made, constituted or appointed Xxxxxx X. Xxxx, III (subject only to Section 3.9(e)) appoint the “Company Stockholder Representative Representative”) as the representativetheir agent, attorney-in-fact and agent representative and authorize and empower it to fulfill the role of the Pre-Reverse Split Company Stockholders and the Company Stockholders for all purposes in connection with the transactions contemplated by this Agreement and any other agreements ancillary hereto and in any litigation or arbitration involving this Agreement. In connection therewith, the Company Stockholder Representative is authorized contemplated hereunder for purposes of this Agreement and the Escrow Agreement. The Company Stockholder Representative shall have full power of substitution to act and decide to give consent and instruction, as applicable, in the name, place and stead of the Company Stockholders and each of them in all matters in connection with this Agreement and the Escrow Agreement. The Company Stockholder Representative’s power shall include the following powers, without limitation: give and receive notices and communications; the power to act for the Company Stockholders and to authorize payment to any Parent Indemnified Party with regard to the indemnification under Article XI; the power to object to such payments, to agree to, negotiate, enter into settlements of or compromise any claim on behalf of the Company Stockholders and comply with orders of courts with respect to such claims; to authorize agreement to or dispute of the adjustment to the Total Common Stock Merger Consideration pursuant to Section 2.9; the power to transact or participate in matters of litigation in connection with this Agreement or the Escrow Agreement subject to the terms hereof and thereof; to make (or cause to be made) distributions to the Company Common Stockholders and holders of In-the-Money Company Options; the power to do or refrain from doing all such further acts and thingsthings on behalf of the Company Stockholders that the Company Stockholder Representative deems necessary or appropriate in its sole discretion including without limitation retaining any attorneys, accountants or other advisors (collectively, “Advisors”) as Company Stockholder Representative sees fit, and to execute all such documents as the Company Stockholder Representative shall deem necessary or appropriate, and shall have the power and authority to:
(i) act for some or all of the Pre-Reverse Split Company Stockholders and the Company Stockholders with regard to all matters pertaining to this Agreement or any other agreements ancillary hereto;
(ii) act for the Pre-Reverse Split Company Stockholders and the Company Stockholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Company Stockholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement, including delivering any update to or correction, amendment or modification of the Closing Date Allocation Schedule permitted by this Agreement;
(iv) do or refrain from doing, on behalf of the Pre-Reverse Split Company Stockholders therewith; and the Company Stockholders, any further act or deed that the Company Stockholder Representative deems necessary or appropriate in the Company Stockholder Representative’s discretion relating power to the subject matter of this Agreement, in each case as fully and completely as the Pre-Reverse Split Company Stockholders and the Company Stockholders could do if personally present;
(v) give and receive all notices required to be given or received by the Pre-Reverse Split Company Stockholders and the Company Stockholders under this Agreement;
(vi) 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 Buyer under Article XI; and
(vii) receive service of process in connection with any claims under this Agreement or any ancillary agreement contemplated hereby.
(b) All decisions and actions of the Company Stockholder Representative on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders shall be deemed to be facts ascertainable outside of this Agreement and shall be binding upon all Pre-Reverse Split Company Stockholders and Company Stockholders, and no Pre-Reverse Split Company Stockholder or Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) At the First Effective Time, Buyer shall pay an amount in cash equal to $25,000 (the “Company Stockholder Representative Expense Amount”) to the Company Stockholder Representative, which Company Stockholder Representative Expense Amount shall be held by the Company Stockholder Representative in a segregated account (the “Company Stockholder Representative Expense Fund”)hereunder. The Company Stockholder Representative Expense Fund will be used solely may resign such position for any reason upon at least thirty (30) days prior written notice delivered to the purposes Parent and the Company Stockholders. In such event, the Company Stockholders who held at least a majority of paying directlythe Company Common Stock as of the Closing shall, or reimbursing by written notice to the Parent, appoint a successor Company Stockholder Representative for, within such thirty (30) day period. Notice or communications to or from any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Company Stockholders will not receive any interest or earnings on the Company Stockholder Representative Expense Fund and irrevocably transfer and assign to the Company Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Company Stockholder Representative will not be liable for any loss of principal of the Company Stockholder Representative Expense Fund other than as a result of its gross negligence or willful misconduct. The Company Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Company Stockholder Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing. In no event shall Buyer or the Final Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse the Company Stockholder Representative for any expenses payable from the Company Stockholder Representative Expense Fund. Upon the determination of the Company Stockholder Representative that retaining any portion of the Company Stockholder Representative Expense Fund is no longer necessary, or as directed by the advisory committee to the Company Stockholder Representative as set forth in the engagement letter between the Company and the Company Stockholder Representative, the Company Stockholder Representative shall deliver any then remaining portion constitute notice to or from each of the Company Stockholder Representative Expense Fund to Buyer, after which Buyer shall, subject to Section 3.14, promptly issue to each Company Stockholder a number of Buyer Ordinary Shares with a value, based on the Buyer Share Value, equal to such Company Stockholder’s Pro Rata Share of such remaining portion of the Company Stockholder Representative Expense FundStockholders.
(db) The Company Stockholder Representative shall act only be liable for the Pre-Reverse Split Company Stockholders and the Company Stockholders on all of the matters set forth in this Agreement and any other agreements ancillary hereto in the manner the action taken or not taken as a Company Stockholder Representative believes to be in the best interest of the Pre-Reverse Split Company Stockholders and the Company Stockholders. The Company Stockholder Representative is authorized to act on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders notwithstanding any dispute or disagreement among the Pre-Reverse Split Company Stockholders or the Company Stockholders. In taking any action as Company Stockholder Representative, the Company Stockholder 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 Stockholder Representative reasonably believes to be authorized thereunto. The Company Stockholder Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Company Stockholder Representative shall not be liable to any Pre-Reverse Split Company Stockholder or Company Stockholder for anything done, omitted or suffered in good faith by the Company Stockholder Representative based on such advice. The Company Stockholder 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 Stockholder Representative. The Company Stockholder Representative shall not have any liability to any of the Company Stockholders for any act done or omitted hereunder as Company Stockholder Representative while acting in good faith and pursuant solely to the engagement letter between the Company and the Company Stockholder Representative. The Company Stockholder Representative shall be indemnified by the Pre-Reverse Split Company Stockholders and the Company Stockholders from and against any loss, liability or expense incurred in good faith on the part of the Company Stockholder Representative and arising out of or in connection with the acceptance or administration of the extent such Company Stockholder Representative’s duties hereunderaction constitutes gross negligence, in each case as such loss, liability fraud or expense is suffered or incurredwillful misconduct. Any such claim for indemnification No bond shall be satisfied first from any then available portion required of the remaining Company Stockholder Representative Expense Fund and, if such amount is insufficient to satisfy any such loss, liability or expense, from the first proceeds from any payments to be made by Buyer pursuant to this Agreement or the CVR Agreement otherwise available for distribution to the Pre-Reverse Split Company Stockholders and/or the Company Stockholders or by a claim against the Company Stockholders (with each Company Stockholder liable for the Pro Rata Share of any such claim that is represented by such Company Stockholder’s Company Capital Stock). Notwithstanding anything in this Agreement to the contrary, nothing herein shall relieve the Company Stockholders from their obligation to promptly pay such losses, liabilities and expenses as they are suffered or incurred, nor does it prevent the Company Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Company Stockholder Representative be required to advance its own funds on behalf of the Company Stockholders 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 Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Company Stockholder Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Company Stockholder Representative or the termination of this Agreement.
(e) In the event the Company Stockholder Representative becomes unable to perform the Company Stockholder Representative’s responsibilities hereunder or resigns from such position, the Company Stockholder Representative shall select another representative to fill the vacancy of the Company Stockholder Representative, and upon such substituted representative’s written agreement to assume the rights and responsibilities of the Company Stockholder Representative hereunder, such substituted representative shall be deemed to be the Company Stockholder Representative for all purposes of this Agreement. Except as contemplated by the previous sentence, the Company Stockholder Representative may be removed only upon delivery of written notice to Bxxxx signed by Company Stockholders who, as of immediately prior to the First Effective Time, held a majority (by voting power) of the then outstanding shares of Company Capital Stock; provided that no such removal shall be effective until such time as a successor Company Stockholder Representative shall have been validly appointed hereunder. The Company Stockholder Representative shall provide Buyer prompt written notice of any replacement of the Company Stockholder Representative, including the identity and address of the new Company Stockholder Representative. Upon any replacement of the Company Stockholder Representative, the Company Stockholder Representative being replaced shall transfer to the new Company Stockholder Representative the balance of any unexpended Company Stockholder Representative Expense Fund.
(f) The Company Stockholder 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 Stockholder 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 Stockholder Representative without a breach of its obligations under this Section 3.9(f)), (ii) as required by applicable Law, (iii) to employees, advisors, agents or consultants of the Company Stockholder Representative (if applicable) and to the Company Stockholders, 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) is in connection with, and only to the extent required for, enforcement of rights or defense of claims (including, in each case, on behalf of the Company Stockholders) under this Agreement and the transactions contemplated hereby and thereby.
(g) For all purposes of this Agreement:
(i) Buyer shall be entitled to rely conclusively on the instructions and decisions of the Company Stockholder Representative as to the settlement of any disputes or claims under this Agreement, or any ancillary agreement contemplated hereby, or any other actions required or permitted to be taken by the Company Stockholder Representative hereunder, and no party hereunder or any Company Stockholder shall have any cause of action against Buyer for any action taken by Buyer in reliance upon the instructions or decisions of the Company Stockholder Representative;
(ii) the provisions of this Section 3.9 are independent and severable, are irrevocable (subject only to Section 3.9(e)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement;
(iii) except as specifically set forth herein, no Company Stockholder will have any right to bring any claim, cause of action, objection or complaint except through the Company Stockholder Representative, and the Company Stockholder Representative shall not receive compensation for its services. The Company Stockholder Representative shall incur no Liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document reasonably believed by it to be genuine and to have been signed by the sole authority proper person, nor for any other action or inaction, except to act forthe extent caused by its own gross negligence, fraud or willful misconduct.
(c) The Company Stockholder Representative shall be entitled to reimburse itself from the Company Stockholder Representative Expenses Amount for any costs and expenses (“Company Stockholder Representative Costs”) incurred by the Company Stockholder Representative, including for the retention of Advisors. The Company Stockholder Representative shall maintain the Company Stockholder Representative Expenses Amount until such time as the Company Stockholder Representative reasonably believes that it will not incur any additional Company Stockholder Representative Costs in order to satisfy its obligations hereunder (the “Company Stockholder Representative Completion Date”). As promptly as practicable following the Company Stockholder Representative Completion Date, the Company Stockholder Representative shall (i) provide each Company Stockholder with a written accounting of all Company Stockholder Representative Costs reimbursed to the Company Stockholder Representative from the Company Stockholder Representative Expenses Amount and (ii) distribute to each Company Stockholder all remaining amounts, if any, of the Company Stockholder Representative Expenses Amount in the same proportions that the Total Common Stock Merger Consideration was distributed to the Company Common Stockholders and the holders of Company Options in Section 2.3 and Section 3.1 above.
(d) A decision, act, consent or instruction of the Company Stockholder Representative shall constitute a decision of all the Company Stockholders, and enforce shall be final, binding and conclusive upon each of the rights ofCompany Stockholders, and the Parent, Merger Sub, Surviving Corporation and the Company may rely upon any decision, act, consent or instruction of the Company Stockholder Representative as being the decision, act, consent or instruction of each and all of the Company Stockholders. The Parent, Merger Sub and Surviving Corporation are relieved from any Liability to any Company Stockholder or any other Person for any acts done by them in accordance with such decision, act, consent or instruction of the Company Stockholder Representative.
(e) The Company Stockholders in connection with this Agreement agree to take any and all action as may be reasonably required by the transactions contemplated hereby; and
Company Stockholder Representative (ivincluding, without limitation, the execution of certificates, transfer documents, receipts, instruments, consents or similar documents) to effectuate the provisions purposes of this Section 3.9 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of each applicable Company Stockholder hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwiseAgreement.
Appears in 1 contract
Company Stockholder Representative. 1.14.1 In order to administer efficiently the defense and/or settlement of any Parent Claims for which the Company Stockholders may be required to indemnify any Parent Indemnified Parties (aas defined in Section 7.1) By pursuant to Article 7 hereof, the Company Stockholders, by their execution of the Letter of Transmittal, approval of the Merger and adoption of this Agreement and/or their acceptance of any consideration pursuant to this Agreement or the CVR Agreementa Stockholder Agreement (as defined in Section 6.1), the Pre-Reverse Split Company Stockholders and the Company Stockholders hereby irrevocably (subject only to Section 3.9(e)) appoint the Company Stockholder Representative as the representativetheir agent, attorney-in-fact and agent representative (with full power of substitution in the Pre-Reverse Split Company Stockholders and the Company Stockholders for all purposes in connection with the transactions contemplated premises), and, by this Agreement and any other agreements ancillary hereto and in any litigation or arbitration involving this Agreement. In connection therewithhis execution hereof, the Company Stockholder Representative is authorized to do or refrain from doing all further acts and things, and to execute all hereby accepts such documents as appointment.
1.14.2 The Company Stockholders hereby authorize the Company Stockholder Representative shall deem necessary or appropriate, and shall have the power and authority to:
to (i) act for some or take all of the Pre-Reverse Split Company Stockholders and the Company Stockholders with regard to all matters pertaining to this Agreement or any other agreements ancillary hereto;
(ii) act for the Pre-Reverse Split Company Stockholders and the Company Stockholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Company Stockholder Representative deems action necessary or appropriate in connection with the consummation defense and/or settlement of the transactions contemplated by this Agreement, including delivering any update to or correction, amendment or modification of the Closing Date Allocation Schedule permitted by this Agreement;
(iv) do or refrain from doing, on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders, any further act or deed that the Company Stockholder Representative deems necessary or appropriate in the Company Stockholder Representative’s discretion relating to the subject matter of this Agreement, in each case as fully and completely as the Pre-Reverse Split Company Stockholders and Parent Claims for which the Company Stockholders could do if personally present;
may be required to indemnify any Parent Indemnified Party pursuant to Article 7 hereof and (vii) give and receive all notices required to be given or received by under this Agreement, the Pre-Reverse Split Company Stockholders Escrow Agreement and the other agreements contemplated hereby to which the Company Stockholders under this Agreement;
(vi) 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 Buyer under Article XI; and
(vii) receive service of process in connection with any claims under this Agreement or any ancillary agreement contemplated herebytheir respective properties or assets are subject.
(b) All decisions and actions of 1.14.3 In the event that the Company Stockholder Representative on behalf of the Pre-Reverse Split Company Stockholders and dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Company Stockholders shall, by election of the Company Stockholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the shares of Company Stock issued and outstanding immediately prior to the Effective Time and held by the Company Stockholders, select another representative to fill such vacancy, and such substituted representative shall be deemed to be facts ascertainable outside the Company Stockholder Representative for all purposes of this Agreement Agreement. If the position of Company Stockholder Representative shall remain vacant for more than 30 days, Parent may designate any Company Stockholder as the Company Stockholder Representative, and such Company Stockholder shall serve as the Company Stockholder Representative until the Company Stockholders shall elect a successor pursuant to this Section 1.14.3.
1.14.4 All decisions and actions by the Company Stockholder Representative, including the defense and/or settlement of any Parent Claims for which the Company Stockholders may be required to indemnify any Parent Indemnified Party pursuant to Article 7, shall be binding upon all Pre-Reverse Split Company Stockholders and of the Company Stockholders, and no Pre-Reverse Split Company Stockholder or Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) At the First Effective Time, Buyer shall pay an amount in cash equal to $25,000 (the “Company Stockholder Representative Expense Amount”) to the Company Stockholder Representative, which Company Stockholder Representative Expense Amount shall be held by the Company Stockholder Representative in a segregated account (the “Company Stockholder Representative Expense Fund”). The Company Stockholder Representative Expense Fund will be used solely for the purposes of paying directly, or reimbursing the Company Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. 1.14.5 The Company Stockholders will not receive any interest or earnings on the Company Stockholder Representative Expense Fund and irrevocably transfer and assign to the Company Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Company Stockholder Representative will not be liable for any loss of principal of the Company Stockholder Representative Expense Fund other than as a result of its gross negligence or willful misconduct. The Company Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Company Stockholder Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing. In no event shall Buyer or the Final Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse the Company Stockholder Representative for any expenses payable from the Company Stockholder Representative Expense Fund. Upon the determination of the Company Stockholder Representative that retaining any portion of the Company Stockholder Representative Expense Fund is no longer necessary, or as directed by the advisory committee to the Company Stockholder Representative as set forth in the engagement letter between the Company and the Company Stockholder Representative, the Company Stockholder Representative shall deliver any then remaining portion of the Company Stockholder Representative Expense Fund to Buyer, after which Buyer shall, subject to Section 3.14, promptly issue to each Company Stockholder a number of Buyer Ordinary Shares with a value, based on the Buyer Share Value, equal to such Company Stockholder’s Pro Rata Share of such remaining portion of the Company Stockholder Representative Expense Fund.
(d) The Company Stockholder Representative shall act for the Pre-Reverse Split Company Stockholders and the Company Stockholders on all of the matters set forth in this Agreement and any other agreements ancillary hereto in the manner the Company Stockholder Representative believes to be in the best interest of the Pre-Reverse Split Company Stockholders and the Company Stockholders. The Company Stockholder Representative is authorized to act on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders notwithstanding any dispute or disagreement among the Pre-Reverse Split Company Stockholders or the Company Stockholders. In taking any action as Company Stockholder Representative, the Company Stockholder 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 Stockholder Representative reasonably believes to be authorized thereunto. The Company Stockholder Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Company Stockholder Representative shall not be liable to any Pre-Reverse Split Company Stockholder or Company Stockholder for anything done, omitted or suffered in good faith by the Company Stockholder Representative based on such advice. The Company Stockholder 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 Stockholder Representative. The Company Stockholder Representative shall not have any liability to any of the Company Stockholders for any act done or omitted hereunder as Company Stockholder Representative while acting in good faith and pursuant to the engagement letter between the Company and the Company Stockholder Representative. The Company Stockholder Representative shall be indemnified by the Pre-Reverse Split Company Stockholders and the Company Stockholders from and against any loss, liability or expense incurred in good faith on the part of the Company Stockholder Representative and arising out of or in connection with the acceptance or administration of the Company Stockholder Representative’s duties hereunder, in each case as such loss, liability or expense is suffered or incurred. Any such claim for indemnification shall be satisfied first from any then available portion of the remaining Company Stockholder Representative Expense Fund and, if such amount is insufficient to satisfy any such loss, liability or expense, from the first proceeds from any payments to be made by Buyer pursuant to this Agreement or the CVR Agreement otherwise available for distribution to the Pre-Reverse Split Company Stockholders and/or the Company Stockholders or by a claim against the Company Stockholders (with each Company Stockholder liable for the Pro Rata Share of any such claim that is represented by such Company Stockholder’s Company Capital Stock). Notwithstanding anything in this Agreement to the contrary, nothing herein shall relieve the Company Stockholders from their obligation to promptly pay such losses, liabilities and expenses as they are suffered or incurred, nor does it prevent the Company Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Company Stockholder Representative be required to advance its own funds on behalf of the Company Stockholders 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 Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Company Stockholder Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Company Stockholder Representative or the termination of this Agreement.
(e) In the event the Company Stockholder Representative becomes unable to perform the Company Stockholder Representative’s responsibilities hereunder or resigns from such position, the Company Stockholder Representative shall select another representative to fill the vacancy of the Company Stockholder Representative, and upon such substituted representative’s written agreement to assume the rights and responsibilities of the Company Stockholder Representative hereunder, such substituted representative shall be deemed to be the Company Stockholder Representative for all purposes of this Agreement. Except as contemplated by the previous sentence, the Company Stockholder Representative may be removed only upon delivery of written notice to Bxxxx signed by Company Stockholders who, as of immediately prior to the First Effective Time, held a majority (by voting power) of the then outstanding shares of Company Capital Stock; provided that no such removal shall be effective until such time as a successor Company Stockholder Representative shall have been validly appointed hereunder. The Company Stockholder Representative shall provide Buyer prompt written notice of any replacement of the Company Stockholder Representative, including the identity and address of the new Company Stockholder Representative. Upon any replacement of the Company Stockholder Representative, the Company Stockholder Representative being replaced shall transfer to the new Company Stockholder Representative the balance of any unexpended Company Stockholder Representative Expense Fund.
(f) The Company Stockholder 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 Stockholder 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 Stockholder Representative without a breach of its obligations under this Section 3.9(f)), (ii) as required by applicable Law, (iii) to employees, advisors, agents or consultants of the Company Stockholder Representative (if applicable) and to the Company Stockholders, 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) is in connection with, and only to the extent required for, enforcement of rights or defense of claims (including, in each case, on behalf of the Company Stockholders) under this Agreement and the transactions contemplated hereby and thereby.
(g) For all purposes of this Agreementagree that:
(i) Buyer shall be entitled to rely conclusively on the instructions and decisions of the Company Stockholder Representative as to the settlement of any disputes or claims under this Agreement, or any ancillary agreement contemplated hereby, or any other actions required or permitted to be taken by the Company Stockholder Representative hereunder, and no party hereunder or any Company Stockholder shall have any cause of action against Buyer for any action taken by Buyer in reliance upon the instructions or decisions of the Company Stockholder Representative;
(ii) the provisions of this Section 3.9 are independent and severable, are irrevocable (subject only to Section 3.9(e)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement;
(iii) except as specifically set forth herein, no Company Stockholder will have any right to bring any claim, cause of action, objection or complaint except through the Company Stockholder Representative, and the Company Stockholder Representative shall have the sole authority to act for, and enforce the rights of, all Company Stockholders in connection with this Agreement and the transactions contemplated hereby; and
(iv) the provisions of this Section 3.9 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of each applicable Company Stockholder hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
Appears in 1 contract
Company Stockholder Representative. (a) By their execution In order to administer efficiently the distribution of the Letter of Transmittal, approval of Total Merger Consideration and the Merger and adoption of this Agreement defense and/or their acceptance settlement of any consideration pursuant to this Agreement or the CVR Agreement, the Pre-Reverse Split Company Stockholders and Parent Claims for which the Company Stockholders hereby may be required to indemnify members of the Parent Group (as defined in Section 7.1) pursuant to Article 7 hereof, the Company Stockholders, by their execution hereof, irrevocably (subject only to Section 3.9(e)) appoint the Company Stockholder Representative as the representativetheir agent, attorney-in-fact and agent representative (with full power of substitution in the Pre-Reverse Split Company Stockholders and the Company Stockholders for all purposes in connection with the transactions contemplated premises), and, by this Agreement and any other agreements ancillary hereto and in any litigation or arbitration involving this Agreement. In connection therewithhis execution hereof, the Company Stockholder Representative is authorized to do or refrain from doing all further acts and thingshereby accepts such appointment. The Company Stockholder Representative shall initially be Carlyle Europe Venture Partners, and to execute all such documents as L.P. At the Closing, the Company shall pay the Company Stockholder Representative shall deem necessary or appropriate, and shall have Fee to the power and authority to:Company Stockholder Representative.
(ib) act for some or all of the Pre-Reverse Split The Company Stockholders and the Company Stockholders with regard to all matters pertaining to this Agreement or any other agreements ancillary hereto;
(ii) act for the Pre-Reverse Split Company Stockholders and the Company Stockholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that hereby authorize the Company Stockholder Representative deems to (i) receive the Total Merger Consideration for distribution to the Company Stockholders in accordance with Article 1 hereof, (ii) take all action necessary or appropriate in connection with the consummation defense and/or settlement of the transactions contemplated by this Agreement, including delivering any update to or correction, amendment or modification of the Closing Date Allocation Schedule permitted by this Agreement;
(iv) do or refrain from doing, on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders, any further act or deed that the Company Stockholder Representative deems necessary or appropriate in the Company Stockholder Representative’s discretion relating to the subject matter of this Agreement, in each case as fully and completely as the Pre-Reverse Split Company Stockholders and Parent Claims for which the Company Stockholders could do if personally present;
may be required to indemnify members of the Parent Group pursuant to Article 7 hereof and (viii) give and receive all notices required to be given or received by under this Agreement and the Pre-Reverse Split Company Stockholders and other agreements contemplated hereby to which the Company Stockholders under this Agreement;
(vi) 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 Buyer under Article XI; and
(vii) receive service of process in connection with any claims under this Agreement or any ancillary agreement contemplated herebytheir respective properties or assets are subject.
(bc) In the event that the Company Stockholder Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Company Stockholders shall, by election of the Company Stockholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the shares of Company Stock issued and outstanding immediately prior to the Effective Time and held by the Company Stockholders, select another representative to fill such vacancy, and such substituted representative shall be deemed to be the Company Stockholder Representative for all purposes of this Agreement. If the position of Company Stockholder Representative shall remain vacant for more than fifteen days, Parent may designate any Company Stockholder as the Company Stockholder Representative, and such Company Stockholder shall serve as the Company Stockholder Representative until the Company Stockholders shall elect a successor pursuant to this Section 1.13(c).
(d) All decisions and actions of by the Company Stockholder Representative on behalf Representative, including the defense and/or settlement of the Pre-Reverse Split Company Stockholders and any Parent Claims for which the Company Stockholders may be required to indemnify members of the Parent Group pursuant to Article 7 hereof, shall be deemed to be facts ascertainable outside Table of this Agreement and shall be Contents binding upon all Pre-Reverse Split Company Stockholders and of the Company Stockholders, and no Pre-Reverse Split Company Stockholder or Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
(ce) At the First Effective Time, Buyer shall pay an amount in cash equal to $25,000 (the “Company Stockholder Representative Expense Amount”) to the Company Stockholder Representative, which Company Stockholder Representative Expense Amount shall be held by the Company Stockholder Representative in a segregated account (the “Company Stockholder Representative Expense Fund”). The Company Stockholder Representative Expense Fund will be used solely for the purposes of paying directly, or reimbursing the Company Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Company Stockholders will not receive any interest or earnings on the Company Stockholder Representative Expense Fund and irrevocably transfer and assign to the Company Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Company Stockholder Representative will not be liable for any loss of principal of the Company Stockholder Representative Expense Fund other than as a result of its gross negligence or willful misconduct. The Company Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Company Stockholder Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing. In no event shall Buyer or the Final Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse the Company Stockholder Representative for any expenses payable from the Company Stockholder Representative Expense Fund. Upon the determination of the Company Stockholder Representative that retaining any portion of the Company Stockholder Representative Expense Fund is no longer necessary, or as directed by the advisory committee to the Company Stockholder Representative as set forth in the engagement letter between the Company and the Company Stockholder Representative, the Company Stockholder Representative shall deliver any then remaining portion of the Company Stockholder Representative Expense Fund to Buyer, after which Buyer shall, subject to Section 3.14, promptly issue to each Company Stockholder a number of Buyer Ordinary Shares with a value, based on the Buyer Share Value, equal to such Company Stockholder’s Pro Rata Share of such remaining portion of the Company Stockholder Representative Expense Fund.
(d) The Company Stockholder Representative shall act for the Pre-Reverse Split Company Stockholders and the Company Stockholders on all of the matters set forth in this Agreement and any other agreements ancillary hereto in the manner the Company Stockholder Representative believes to be in the best interest of the Pre-Reverse Split Company Stockholders and the Company Stockholders. The Company Stockholder Representative is authorized to act on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders notwithstanding any dispute or disagreement among the Pre-Reverse Split Company Stockholders or the Company Stockholders. In taking any action as Company Stockholder Representative, the Company Stockholder 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 Stockholder Representative reasonably believes to be authorized thereunto. The Company Stockholder Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Company Stockholder Representative shall not be liable to any Pre-Reverse Split Company Stockholder or Company Stockholder for anything done, omitted or suffered in good faith by the Company Stockholder Representative based on such advice. The Company Stockholder 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 Stockholder Representative. The Company Stockholder Representative shall not have any liability to any of the Company Stockholders for any act done or omitted hereunder as Company Stockholder Representative while acting in good faith and pursuant to the engagement letter between the Company and the Company Stockholder Representative. The Company Stockholder Representative shall be indemnified by the Pre-Reverse Split Company Stockholders and the Company Stockholders from and against any loss, liability or expense incurred in good faith on the part of the Company Stockholder Representative and arising out of or in connection with the acceptance or administration of the Company Stockholder Representative’s duties hereunder, in each case as such loss, liability or expense is suffered or incurred. Any such claim for indemnification shall be satisfied first from any then available portion of the remaining Company Stockholder Representative Expense Fund and, if such amount is insufficient to satisfy any such loss, liability or expense, from the first proceeds from any payments to be made by Buyer pursuant to this Agreement or the CVR Agreement otherwise available for distribution to the Pre-Reverse Split Company Stockholders and/or the Company Stockholders or by a claim against the Company Stockholders (with each Company Stockholder liable for the Pro Rata Share of any such claim that is represented by such Company Stockholder’s Company Capital Stock). Notwithstanding anything in this Agreement to the contrary, nothing herein shall relieve the Company Stockholders from their obligation to promptly pay such losses, liabilities and expenses as they are suffered or incurred, nor does it prevent the Company Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Company Stockholder Representative be required to advance its own funds on behalf of the Company Stockholders 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 Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Company Stockholder Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Company Stockholder Representative or the termination of this Agreement.
(e) In the event the Company Stockholder Representative becomes unable to perform the Company Stockholder Representative’s responsibilities hereunder or resigns from such position, the Company Stockholder Representative shall select another representative to fill the vacancy of the Company Stockholder Representative, and upon such substituted representative’s written agreement to assume the rights and responsibilities of the Company Stockholder Representative hereunder, such substituted representative shall be deemed to be the Company Stockholder Representative for all purposes of this Agreement. Except as contemplated by the previous sentence, the Company Stockholder Representative may be removed only upon delivery of written notice to Bxxxx signed by Company Stockholders who, as of immediately prior to the First Effective Time, held a majority (by voting power) of the then outstanding shares of Company Capital Stock; provided that no such removal shall be effective until such time as a successor Company Stockholder Representative shall have been validly appointed hereunder. The Company Stockholder Representative shall provide Buyer prompt written notice of any replacement of the Company Stockholder Representative, including the identity and address of the new Company Stockholder Representative. Upon any replacement of the Company Stockholder Representative, the Company Stockholder Representative being replaced shall transfer to the new Company Stockholder Representative the balance of any unexpended Company Stockholder Representative Expense Fund.
(f) The Company Stockholder 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 Stockholder 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 Stockholder Representative without a breach of its obligations under this Section 3.9(f)), (ii) as required by applicable Law, (iii) to employees, advisors, agents or consultants of the Company Stockholder Representative (if applicable) and to the Company Stockholders, 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) is in connection with, and only to the extent required for, enforcement of rights or defense of claims (including, in each case, on behalf of the Company Stockholders) under this Agreement and the transactions contemplated hereby and thereby.
(g) For all purposes of this Agreementagree that:
(i) Buyer Parent shall be entitled able to rely conclusively on the instructions and decisions of the Company Stockholder Representative as to the settlement of any disputes or claims under this Agreement, or any ancillary agreement contemplated hereby, Parent Claims for indemnification of members of the Parent Group pursuant to Article 7 hereof or any other actions required or permitted to be taken by the Company Stockholder Representative hereunder, and no party Party hereunder or any Company Stockholder shall have any cause of action against Buyer any member of the Parent Group for any action taken by Buyer any member of the Parent Group in reliance upon the instructions or decisions of the Company Stockholder Representative;
(ii) all actions, decisions and instructions of the Company Stockholder Representative shall be conclusive and binding upon all of the Company Stockholders and no Company Stockholder shall have any cause of action against the Company Stockholder Representative for any action taken or not taken, decision made or instruction given by the Company Stockholder Representative under this Agreement, except for fraud, gross negligence, willful misconduct or bad faith by the Company Stockholder Representative;
(iii) the Company Stockholders shall indemnify and hold harmless, in proportion to their respective distributions of the Total Merger Consideration, the Company Stockholder Representative from all loss, liability or expense (including the reasonable fees and expenses of counsel) arising out of or in connection with the Company Stockholder Representative’s execution and performance of this Agreement, except for fraud, gross negligence, willful misconduct or bad faith by the Company Stockholder Representative;
(iv) the provisions of this Section 3.9 1.13 are independent and severable, are irrevocable (subject only to Section 3.9(e)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement;
(iii) except as specifically set forth herein, no Company Stockholder will have any right to bring any claim, cause of action, objection or complaint except through the Company Stockholder Representative, and the Company Stockholder Representative shall have the sole authority to act for, and enforce the rights of, all Company Stockholders in connection with this Agreement and the transactions contemplated hereby; and
(ivv) the provisions of this Section 3.9 1.13 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees successors and successors assigns of each Company Stockholder, and any references in this Agreement to a Company Stockholder or the Company Stockholders shall mean and include the successors to the rights of each applicable the Company Stockholder Stockholders hereunder, whether pursuant to testamentary disposition, the Laws laws of descent and distribution distribution, assignment or otherwise.
(f) All reasonable fees and expenses incurred by the Company Stockholder Representative in connection with this Agreement shall be paid by the Company Stockholders (in proportion to their respective distributions of the Total Merger Consideration), and the Company Stockholder Representative may deduct the appropriate amount of such fees and expenses from any distribution of the Total Merger Consideration in satisfaction of such obligation of the Company Stockholders; provided, however, that the Company Stockholder Representative shall, in connection with such distribution, promptly deliver to each Company Stockholder a reasonably detailed itemization of the fees and expenses so deducted. Table of Contents
(g) The Company Stockholder Representative covenants to promptly deliver all payments to be distributed by the Company Stockholder Representative pursuant to the terms of this Agreement.
Appears in 1 contract
Company Stockholder Representative. (a) By their execution of the Letter of Transmittal, approval of the Merger JX Xxxxxx is hereby appointed as agent and adoption of this Agreement and/or their acceptance of any consideration pursuant to this Agreement or the CVR Agreement, the Pre-Reverse Split Company Stockholders and the Company Stockholders hereby irrevocably (subject only to Section 3.9(e)) appoint the Company Stockholder Representative as the representative, attorney-in-fact for and agent on behalf of each of the Pre-Reverse Split holders of shares of Company Stockholders Capital Stock (the “Company Stockholder Representative”), to give and the Company Stockholders for all purposes in connection with the transactions contemplated by receive notices and communications, to agree to, negotiate and enter into settlements and compromises of claims, to demand, prosecute and defend claims arising out of this Agreement and any other agreements ancillary hereto to comply with orders of courts and determinations and awards with respect to claims, and to take all actions necessary or appropriate in any litigation or arbitration involving this Agreement. In connection therewith, the judgment of the Company Stockholder Representative is authorized for the accomplishment of the foregoing. Such agency may be changed by the consent of the holders of a majority of the shares of Company Capital Stock from time to do or refrain from doing all further acts and thingstime upon not less than thirty (30) days’ prior written notice to Parent. Any vacancy in the position of Company Stockholder Representative shall be filled by a majority-in-interest of the holders of shares of Company Capital Stock. The Company Stockholder Representative may resign upon thirty (30) days’ prior written notice to Parent provided that no such resignation shall become effective until the appointment of a successor Company Stockholder Representative. No bond shall be required of the Company Stockholder Representative, and to execute all such documents as the Company Stockholder Representative shall deem necessary not receive compensation for its services. Notices or appropriate, and shall have the power and authority to:
(i) act for some or all of the Pre-Reverse Split Company Stockholders and the Company Stockholders with regard to all matters pertaining to this Agreement or any other agreements ancillary hereto;
(ii) act for the Pre-Reverse Split Company Stockholders and the Company Stockholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Company Stockholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement, including delivering any update communications to or correction, amendment or modification of the Closing Date Allocation Schedule permitted by this Agreement;
(iv) do or refrain from doing, on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders, any further act or deed that the Company Stockholder Representative deems necessary or appropriate in the Company Stockholder Representative’s discretion relating to the subject matter of this Agreement, in each case as fully and completely as the Pre-Reverse Split Company Stockholders and the Company Stockholders could do if personally present;
(v) give and receive all notices required to be given or received by the Pre-Reverse Split Company Stockholders and the Company Stockholders under this Agreement;
(vi) 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 Buyer under Article XI; and
(vii) receive service of process in connection with any claims under this Agreement or any ancillary agreement contemplated hereby.
(b) All decisions and actions of the Company Stockholder Representative on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders shall be deemed to be facts ascertainable outside of this Agreement and shall be binding upon all Pre-Reverse Split Company Stockholders and Company Stockholders, and no Pre-Reverse Split Company Stockholder or Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) At the First Effective Time, Buyer shall pay an amount in cash equal to $25,000 (the “Company Stockholder Representative Expense Amount”) to the Company Stockholder Representative, which Company Stockholder Representative Expense Amount shall be held by the Company Stockholder Representative in a segregated account (the “Company Stockholder Representative Expense Fund”). The Company Stockholder Representative Expense Fund will be used solely for the purposes of paying directly, or reimbursing the Company Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Company Stockholders will not receive any interest or earnings on the Company Stockholder Representative Expense Fund and irrevocably transfer and assign to the Company Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Company Stockholder Representative will not be liable for any loss of principal of the Company Stockholder Representative Expense Fund other than as a result of its gross negligence or willful misconduct. The Company Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Company Stockholder Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing. In no event shall Buyer or the Final Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse the Company Stockholder Representative for any expenses payable from the Company Stockholder Representative Expense Fund. Upon the determination shall constitute notice to or from each holder of the shares of Company Stockholder Representative that retaining any portion of the Company Stockholder Representative Expense Fund is no longer necessary, or as directed by the advisory committee to the Company Stockholder Representative as set forth in the engagement letter between the Company and the Company Stockholder Representative, the Company Stockholder Representative shall deliver any then remaining portion of the Company Stockholder Representative Expense Fund to Buyer, after which Buyer shall, subject to Section 3.14, promptly issue to each Company Stockholder a number of Buyer Ordinary Shares with a value, based on the Buyer Share Value, equal to such Company Stockholder’s Pro Rata Share of such remaining portion of the Company Stockholder Representative Expense FundCapital Stock.
(db) The Company Stockholder Representative shall act not have any liability for any Damages to the Pre-Reverse Split holders of shares of Company Stockholders and the Company Stockholders on all of the matters set forth in this Agreement and any other agreements ancillary hereto in the manner the Company Stockholder Representative believes to be in the best interest of the Pre-Reverse Split Company Stockholders and the Company Stockholders. The Company Stockholder Representative is authorized to act on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders notwithstanding any dispute or disagreement among the Pre-Reverse Split Company Stockholders or the Company Stockholders. In taking Capital Stock for any action taken or suffered by it or omitted hereunder as Company Stockholder Representative, except as caused by the Company Stockholder Representative may rely conclusively, without any further inquiry Shareholder Representative’s gross negligence or investigation, upon any certification or confirmation, oral or written, given by any Person whom the Company Stockholder Representative reasonably believes to be authorized thereuntowillful misconduct. The Company Stockholder Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Company Stockholder Representative shall not be liable to any Pre-Reverse Split the holders of shares of Company Stockholder or Company Stockholder Capital Stock for anything done, omitted or suffered in good faith by the Company Stockholder Representative based on such advice. The Company Stockholder 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 Stockholder Representative. The Company Stockholder Representative shall not have any liability to any .
(c) A decision, act, consent or instruction of the Company Stockholders for any act done or omitted hereunder as Company Stockholder Representative while acting in good faith and pursuant to the engagement letter between the Company and the Company Stockholder Representative. The Company Stockholder Representative shall be indemnified by the Pre-Reverse Split Company Stockholders and the Company Stockholders from and against any loss, liability deemed to have been taken or expense incurred in good faith on the part of the Company Stockholder Representative and arising out of or in connection with the acceptance or administration of the Company Stockholder Representative’s duties hereunder, in each case as such loss, liability or expense is suffered or incurred. Any such claim for indemnification shall be satisfied first from any then available portion of the remaining Company Stockholder Representative Expense Fund and, if such amount is insufficient to satisfy any such loss, liability or expense, from the first proceeds from any payments to be made by Buyer pursuant to this Agreement or the CVR Agreement otherwise available for distribution to the Pre-Reverse Split Company Stockholders and/or the Company Stockholders or by a claim against the Company Stockholders (with each Company Stockholder liable for the Pro Rata Share of any such claim that is represented by such Company Stockholder’s Company Capital Stock). Notwithstanding anything in this Agreement to the contrary, nothing herein shall relieve the Company Stockholders from their obligation to promptly pay such losses, liabilities and expenses as they are suffered or incurred, nor does it prevent the Company Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Company Stockholder Representative be required to advance its own funds given on behalf of all the holders of shares of Company Stockholders 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 Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Company Stockholder Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Company Stockholder Representative or the termination of this Agreement.
(e) In the event the Company Stockholder Representative becomes unable to perform the Company Stockholder Representative’s responsibilities hereunder or resigns from such position, the Company Stockholder Representative shall select another representative to fill the vacancy of the Company Stockholder Representative, Capital Stock and upon such substituted representative’s written agreement to assume the rights and responsibilities of the Company Stockholder Representative hereunder, such substituted representative shall be deemed to be final, binding and conclusive upon all the Company Stockholder Representative for all purposes holders of this Agreement. Except as contemplated by the previous sentence, the Company Stockholder Representative may be removed only upon delivery of written notice to Bxxxx signed by Company Stockholders who, as of immediately prior to the First Effective Time, held a majority (by voting power) of the then outstanding shares of Company Capital Stock; provided that no such removal shall be effective until such time as a successor Company Stockholder Representative shall have been validly appointed hereunder. The Company Stockholder Representative shall provide Buyer prompt written notice of any replacement of the Company Stockholder Representative, including the identity and address of the new Company Stockholder Representative. Upon any replacement of the Company Stockholder Representative, the Company Stockholder Representative being replaced shall transfer to the new Company Stockholder Representative the balance of any unexpended Company Stockholder Representative Expense Fund.
(f) The Company Stockholder 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 Stockholder 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 Stockholder Representative without a breach of its obligations under this Section 3.9(f)), (ii) as required by applicable Law, (iii) to employees, advisors, agents or consultants of the Company Stockholder Representative (if applicable) and to the Company Stockholders, in each case who have a need to know such information, and further provided that the Parent may rely upon any such persons are subject to confidentiality obligations with respect theretodecision, act, consent or (iv) is in connection with, and only to the extent required for, enforcement of rights or defense of claims (including, in each case, on behalf of the Company Stockholders) under this Agreement and the transactions contemplated hereby and thereby.
(g) For all purposes of this Agreement:
(i) Buyer shall be entitled to rely conclusively on the instructions and decisions instruction of the Company Stockholder Representative as to being the settlement decision, act, consent or instruction of, and binding on, each of any disputes or claims under this Agreementthe holders of shares of Company Capital Stock. Parent, or any ancillary agreement contemplated hereby, or any other actions required or permitted to be taken by the Company Stockholder Representative hereunder, and no party hereunder or their respective representatives are hereby relieved from any Company Stockholder shall have liability to any cause of action against Buyer Person for any action taken acts done by Buyer them in reliance upon the instructions accordance with such decision, act, consent or decisions instruction of the Company Stockholder Representative;
(ii) the provisions of this Section 3.9 are independent and severable, are irrevocable (subject only to Section 3.9(e)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement;
(iii) except as specifically set forth herein, no Company Stockholder will have any right to bring any claim, cause of action, objection or complaint except through the Company Stockholder Representative, and the Company Stockholder Representative shall have the sole authority to act for, and enforce the rights of, all Company Stockholders in connection with this Agreement and the transactions contemplated hereby; and
(iv) the provisions of this Section 3.9 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of each applicable Company Stockholder hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Live Nation, Inc.)
Company Stockholder Representative. (a) By their execution of the Letter of Transmittal, approval of the Merger and adoption of this Agreement and/or their acceptance of any consideration pursuant to this Agreement or the CVR Agreement, the Pre-Reverse Split Company Stockholders and the Company Stockholders hereby irrevocably (subject only to Section 3.9(e3.9(e)) appoint the Company Stockholder Representative as the representative, attorney-in-fact and agent of the Pre-Reverse Split Company Stockholders and the Company Stockholders for all purposes in connection with the transactions contemplated by this Agreement and any other agreements ancillary hereto and in any litigation or arbitration involving this Agreement. In connection therewith, the Company Stockholder Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Company Stockholder Representative shall deem necessary or appropriate, and shall have the power and authority to:
(i) act for some or all of the Pre-Reverse Split Company Stockholders and the Company Stockholders with regard to all matters pertaining to this Agreement or any other agreements ancillary hereto;
(ii) act for the Pre-Reverse Split Company Stockholders and the Company Stockholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Company Stockholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement, including delivering any update to or correction, amendment or modification of the Closing Date Allocation Schedule permitted by this Agreement;
(iv) do or refrain from doing, on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders, any further act or deed that the Company Stockholder Representative deems necessary or appropriate in the Company Stockholder Representative’s discretion relating to the subject matter of this Agreement, in each case as fully and completely as the Pre-Reverse Split Company Stockholders and the Company Stockholders could do if personally present;
(v) give and receive all notices required to be given or received by the Pre-Reverse Split Company Stockholders and the Company Stockholders under this Agreement;
(vi) 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 Buyer under Article Article XI; and
(vii) receive service of process in connection with any claims under this Agreement or any ancillary agreement contemplated hereby.
(b) All decisions and actions of the Company Stockholder Representative on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders shall be deemed to be facts ascertainable outside of this Agreement and shall be binding upon all Pre-Reverse Split Company Stockholders and Company Stockholders, and no Pre-Reverse Split Company Stockholder or Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) At the First Effective Time, Buyer shall pay an amount in cash equal to $25,000 (the “Company Stockholder Representative Expense Amount”) to the Company Stockholder Representative, which Company Stockholder Representative Expense Amount shall be held by the Company Stockholder Representative in a segregated account (the “Company Stockholder Representative Expense Fund”). The Company Stockholder Representative Expense Fund will be used solely for the purposes of paying directly, or reimbursing the Company Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Company Stockholders will not receive any interest or earnings on the Company Stockholder Representative Expense Fund and irrevocably transfer and assign to the Company Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Company Stockholder Representative will not be liable for any loss of principal of the Company Stockholder Representative Expense Fund other than as a result of its gross negligence or willful misconduct. The Company Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Company Stockholder Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing. In no event shall Buyer or the Final Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse the Company Stockholder Representative for any expenses payable from the Company Stockholder Representative Expense Fund. Upon the determination of the Company Stockholder Representative that retaining any portion of the Company Stockholder Representative Expense Fund is no longer necessary, or as directed by the advisory committee to the Company Stockholder Representative as set forth in the engagement letter between the Company and the Company Stockholder Representative, the Company Stockholder Representative shall deliver any then remaining portion of the Company Stockholder Representative Expense Fund to Buyer, after which Buyer shall, subject to Section 3.143.14, promptly issue to each Company Stockholder a number of Buyer Ordinary Shares with a value, based on the Buyer Share Value, equal to such Company Stockholder’s Pro Rata Share of such remaining portion of the Company Stockholder Representative Expense Fund.
(d) The Company Stockholder Representative shall act for the Pre-Reverse Split Company Stockholders and the Company Stockholders on all of the matters set forth in this Agreement and any other agreements ancillary hereto in the manner the Company Stockholder Representative believes to be in the best interest of the Pre-Reverse Split Company Stockholders and the Company Stockholders. The Company Stockholder Representative is authorized to act on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders notwithstanding any dispute or disagreement among the Pre-Reverse Split Company Stockholders or the Company Stockholders. In taking any action as Company Stockholder Representative, the Company Stockholder 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 Stockholder Representative reasonably believes to be authorized thereunto. The Company Stockholder Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Company Stockholder Representative shall not be liable to any Pre-Reverse Split Company Stockholder or Company Stockholder for anything done, omitted or suffered in good faith by the Company Stockholder Representative based on such advice. The Company Stockholder 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 Stockholder Representative. The Company Stockholder Representative shall not have any liability to any of the Company Stockholders for any act done or omitted hereunder as Company Stockholder Representative while acting in good faith and pursuant to the engagement letter between the Company and the Company Stockholder Representative. The Company Stockholder Representative shall be indemnified by the Pre-Reverse Split Company Stockholders and the Company Stockholders from and against any loss, liability or expense incurred in good faith on the part of the Company Stockholder Representative and arising out of or in connection with the acceptance or administration of the Company Stockholder Representative’s duties hereunder, in each case as such loss, liability or expense is suffered or incurred. Any such claim for indemnification shall be satisfied first from any then available portion of the remaining Company Stockholder Representative Expense Fund and, if such amount is insufficient to satisfy any such loss, liability or expense, from the first proceeds from any payments to be made by Buyer pursuant to this Agreement or the CVR Agreement otherwise available for distribution to the Pre-Reverse Split Company Stockholders and/or the Company Stockholders or by a claim against the Company Stockholders (with each Company Stockholder liable for the Pro Rata Share of any such claim that is represented by such Company Stockholder’s Company Capital Stock). Notwithstanding anything in this Agreement to the contrary, nothing herein shall relieve the Company Stockholders from their obligation to promptly pay such losses, liabilities and expenses as they are suffered or incurred, nor does it prevent the Company Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Company Stockholder Representative be required to advance its own funds on behalf of the Company Stockholders 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 Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Company Stockholder Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Company Stockholder Representative or the termination of this Agreement.
(e) In the event the Company Stockholder Representative becomes unable to perform the Company Stockholder Representative’s responsibilities hereunder or resigns from such position, the Company Stockholder Representative shall select another representative to fill the vacancy of the Company Stockholder Representative, and upon such substituted representative’s written agreement to assume the rights and responsibilities of the Company Stockholder Representative hereunder, such substituted representative shall be deemed to be the Company Stockholder Representative for all purposes of this Agreement. Except as contemplated by the previous sentence, the Company Stockholder Representative may be removed only upon delivery of written notice to Bxxxx signed by Company Stockholders who, as of immediately prior to the First Effective Time, held a majority (by voting power) of the then outstanding shares of Company Capital Stock; provided that no such removal shall be effective until such time as a successor Company Stockholder Representative shall have been validly appointed hereunder. The Company Stockholder Representative shall provide Buyer prompt written notice of any replacement of the Company Stockholder Representative, including the identity and address of the new Company Stockholder Representative. Upon any replacement of the Company Stockholder Representative, the Company Stockholder Representative being replaced shall transfer to the new Company Stockholder Representative the balance of any unexpended Company Stockholder Representative Expense Fund.
(f) The Company Stockholder 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 Stockholder 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 Stockholder Representative without a breach of its obligations under this Section 3.9(f3.9(f)), (ii) as required by applicable Law, (iii) to employees, advisors, agents or consultants of the Company Stockholder Representative (if applicable) and to the Company Stockholders, 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) is in connection with, and only to the extent required for, enforcement of rights or defense of claims (including, in each case, on behalf of the Company Stockholders) under this Agreement and the transactions contemplated hereby and thereby.
(g) For all purposes of this Agreement:
(i) Buyer shall be entitled to rely conclusively on the instructions and decisions of the Company Stockholder Representative as to the settlement of any disputes or claims under this Agreement, or any ancillary agreement contemplated hereby, or any other actions required or permitted to be taken by the Company Stockholder Representative hereunder, and no party hereunder or any Company Stockholder shall have any cause of action against Buyer for any action taken by Buyer in reliance upon the instructions or decisions of the Company Stockholder Representative;
(ii) the provisions of this Section 3.9 3.9 are independent and severable, are irrevocable (subject only to Section 3.9(e3.9(e)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement;
(iii) except as specifically set forth herein, no Company Stockholder will have any right to bring any claim, cause of action, objection or complaint except through the Company Stockholder Representative, and the Company Stockholder Representative shall have the sole authority to act for, and enforce the rights of, all Company Stockholders in connection with this Agreement and the transactions contemplated hereby; and
(iv) the provisions of this Section 3.9 3.9 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of each applicable Company Stockholder hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
Appears in 1 contract
Company Stockholder Representative. (a) By their execution Rationem, LLC is hereby appointed, authorized and empowered to act as a representative for the benefit of the Letter of TransmittalCompany Stockholders, approval of the Merger and adoption of this Agreement and/or their acceptance of any consideration pursuant to this Agreement or the CVR Agreement, the Pre-Reverse Split Company Stockholders and the Company Stockholders hereby irrevocably (subject only to Section 3.9(e)) appoint the Company Stockholder Representative as the representative, exclusive agent and attorney-in-fact and agent to act on behalf of the Pre-Reverse Split each Company Stockholders and the Company Stockholders for all purposes Stockholder, in connection with the transactions contemplated by this Agreement and any other agreements ancillary hereto and in any litigation or arbitration involving this Agreement. In connection therewith, the Company Stockholder Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Company Stockholder Representative shall deem necessary or appropriate, and shall have the power and authority to:
(i) act for some or all of the Pre-Reverse Split Company Stockholders and the Company Stockholders with regard to all matters pertaining to this Agreement or any other agreements ancillary hereto;
(ii) act for the Pre-Reverse Split Company Stockholders and the Company Stockholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Company Stockholder Representative deems necessary or appropriate in connection with facilitate the consummation of the transactions contemplated by this Agreement, including delivering pursuant to any update Ancillary Documents, which shall include the power and authority:
(i) to execute and deliver this Agreement and any Ancillary Documents (with such modifications or correctionchanges herein or therein as to which the Company Stockholder Representative, amendment in its sole and absolute, discretion, shall have consented) and to agree to such amendments or modification modifications thereto or to this Agreement as the Company Stockholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) to execute and deliver such amendments, modifications, waivers and consents in connection with this Agreement, any Ancillary Document or the consummation of the Closing Date Allocation Schedule permitted by transactions contemplated hereby or thereby as the Company Stockholder Representative, in its sole discretion, may deem necessary or desirable;
(iii) to enforce and protect the rights and interests of the Company Stockholders and to enforce and protect the rights and interests of the Company Stockholder Representative arising out of or under or in any manner relating to this Agreement, any Ancillary Document or the transactions contemplated hereby or thereby, and to take any and all actions which the Company Stockholder Representative believes are necessary or appropriate under this Agreement and/or any Ancillary Document for and on behalf of Company Stockholders (but, in each case, subject to the terms and conditions hereunder and thereunder);
(iv) do or to refrain from doingenforcing any right of any Company Stockholder or the Company Stockholder Representative arising out of or under or in any manner relating to this Agreement or any Ancillary Document or any of the transactions contemplated hereby or thereby; provided, however, that no such failure to act on the part of the Company Stockholder Representative, except as otherwise provided in this Agreement or in any Ancillary Document, shall be deemed a waiver of any such right or interest by any such Company Stockholder or Company Stockholder Representative unless such waiver is in writing signed by the waiving party or by the Company Stockholder Representative, as applicable; and
(v) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Company Stockholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement and all Ancillary Documents on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders(but, any further act or deed that the Company Stockholder Representative deems necessary or appropriate in the Company Stockholder Representative’s discretion relating each, case subject to the subject matter of this Agreement, in each case as fully terms and completely as the Pre-Reverse Split Company Stockholders conditions hereunder and the Company Stockholders could do if personally present;
(v) give and receive all notices required to be given or received by the Pre-Reverse Split Company Stockholders and the Company Stockholders under this Agreement;
(vi) 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 Buyer under Article XI; and
(vii) receive service of process in connection with any claims under this Agreement or any ancillary agreement contemplated herebythereunder).
(b) All decisions and actions Each of the other Parties shall be entitled to rely conclusively, without inquiry, on any document executed or purported to be executed on behalf of any Company Stockholder by the Company Stockholder Representative Representative, and on any other decision, action, omission, consent or instruction taken or purported to be taken on behalf of the Pre-Reverse Split any Company Stockholders and Stockholder by the Company Stockholders Stockholder Representative, as fully binding on such Company Stockholder, and each of the other Parties are hereby relieved from any liability to any Person in accordance with the foregoing, all of which shall be deemed to be facts ascertainable outside of this Agreement and shall be legally binding upon all Pre-Reverse Split Company Stockholders and the Company Stockholders, and no Pre-Reverse Split Company Stockholder or Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same. Notice given to the Company Stockholder Representative in accordance with the provisions of this Agreement shall constitute notice to the Company Stockholders for all purposes under this Agreement or, except as otherwise expressly provided therein, any Ancillary Document.
(c) At The grant of authority provided for herein (A) is coupled with an interest and shall be irrevocable and survive the First Effective Timedeath, Buyer incompetency, bankruptcy or liquidation of any Company Stockholder, and (B) shall pay an amount in cash equal to $25,000 (survive the “consummation of transactions contemplated by this Agreement. All decisions and actions by the Company Stockholder Representative Expense Amount”) made in accordance with the authority granted to it hereunder, shall be binding upon all of the Company Stockholder, and no Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same. Notwithstanding the foregoing, the Company Stockholder Representative may resign as the Company Stockholder Representative at any time by providing written notice to Tailwind, which resignation shall become effective upon appointment of a successor Company Stockholder Representative by the Company Stockholders constituting a majority of the voting power of the Company Shares immediately prior to Effective Time. All power, authority, rights, privileges and obligations conferred in this Agreement to the Company Stockholder Representative shall apply to any successor Company Stockholder Representative.
(d) By virtue of the adoption of this Agreement and the approval of this Agreement, the Ancillary Documents to which the Company is or will be a party, and the transactions contemplated hereby and thereby, by the Company Stockholders, each Company Stockholder (regardless of whether or not such Company Stockholder votes in favor of the adoption of this Agreement and the approval of this Agreement, Ancillary Documents and the transactions contemplated hereby and thereby, whether at a meeting or by written consent in lieu thereof) shall be deemed to have (i) released the Company Stockholder Representative Expense Amount shall be held from, and agreed to indemnify the Stockholder Representative against, liability for any action taken or not taken by the Company Stockholder Representative in a segregated account (the “its capacity as such Company Stockholder Representative Expense Fund”). The Company Stockholder Representative Expense Fund will be used solely Representative, except for the purposes of paying directly, or reimbursing the Company Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Company Stockholders will not receive any interest or earnings on the Company Stockholder Representative Expense Fund and irrevocably transfer and assign to the Company Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Company Stockholder Representative will not be liable for any loss of principal liability of the Company Stockholder Representative Expense Fund other than as to a result of its gross negligence or willful misconduct. The Company Stockholder for loss which such Company Stockholder may suffer from fraud committed by the Company Stockholder Representative will hold these funds separate from in carrying out its corporate fundsduties hereunder, 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 (ii) appointed, as of bankruptcy. For tax purposessuch approval, the Company Stockholder Representative Expense Fund will be treated as having been received such Company Stockholder’s exclusive agent and voluntarily set aside by attorney-in-fact to enter into any agreement in connection with the Company Stockholders at the time of Closing. In no event shall Buyer or the Final Surviving Corporation (Agreement, Ancillary Documents and transactions contemplated hereby and thereby, to exercise all or any of their respective Affiliatesthe powers, authority and discretion conferred on such Company Stockholder under any such agreement, to give and receive notices on such Company Stockholder’s behalf and to be such Company Stockholder’s exclusive representative with respect to any matter, suit, claim, action or other Proceeding arising with respect to any transaction contemplated by such agreement, including, without limitation, the defense, settlement or compromise of any claim, action or other Proceeding thereunder.
(e) The Company Stockholder Representative hereby represents and warrants to the Tailwind Parties, in each case, as of the date of this Agreement and as of the Closing, as follows:
(i) The Company Stockholder Representative is a Delaware limited liability company duly formed, validly existing and in good standing under the Laws of the State of Delaware;
(ii) The Company Stockholder Representative has the requisite limited liability company power and authority to execute and deliver this Agreement and each Ancillary Document to which it is or will be obligated a party, to reimburse perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement, the Ancillary Documents to which the Company Stockholder Representative for is or will be a party and the consummation of the transactions contemplated hereby and thereby have been (or, in the case of any expenses payable from Ancillary Document entered into after the date of this Agreement, will be upon execution thereof) duly authorized by all necessary limited liability company action on the part of the Company Stockholder Representative. This Agreement and each Ancillary Document to which the Company Stockholder Representative Expense Fund. Upon is or will be a party has been or will be, upon execution thereof, as applicable, duly and validly executed and delivered by the determination Company Stockholder Representative and constitutes or will constitute, upon execution and delivery thereof, as applicable, a valid, legal and binding agreement of the Company Stockholder Representative (assuming that retaining any portion of this Agreement and the Ancillary Documents to which the Company Stockholder Representative Expense Fund is no longer necessaryor will be a party are or will be upon execution thereof, or as directed applicable, duly authorized, executed and delivered by the advisory committee to other Persons party thereto), enforceable against the Company Stockholder Representative as set forth in the engagement letter between the Company and the Company Stockholder Representative, the Company Stockholder Representative shall deliver any then remaining portion of the Company Stockholder Representative Expense Fund to Buyer, after which Buyer shall, accordance with its terms (subject to Section 3.14applicable bankruptcy, promptly issue insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to each Company Stockholder a number general principles of Buyer Ordinary Shares with a value, based on the Buyer Share Value, equal to such Company Stockholder’s Pro Rata Share of such remaining portion of the Company Stockholder Representative Expense Fund.equity);
(diii) The Company Stockholder Representative shall act for the Pre-Reverse Split Company Stockholders and the Company Stockholders on all of the matters set forth in this Agreement and No consent, approval or authorization of, or designation, declaration or filing with, any other agreements ancillary hereto in the manner the Company Stockholder Representative believes to be in the best interest of the Pre-Reverse Split Company Stockholders and the Company Stockholders. The Company Stockholder Representative Governmental Entity is authorized to act on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders notwithstanding any dispute or disagreement among the Pre-Reverse Split Company Stockholders or the Company Stockholders. In taking any action as Company Stockholder Representative, the Company Stockholder 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 Stockholder Representative reasonably believes to be authorized thereunto. The Company Stockholder Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Company Stockholder Representative shall not be liable to any Pre-Reverse Split Company Stockholder or Company Stockholder for anything done, omitted or suffered in good faith by the Company Stockholder Representative based on such advice. The Company Stockholder 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 Stockholder Representative. The Company Stockholder Representative shall not have any liability to any of the Company Stockholders for any act done or omitted hereunder as Company Stockholder Representative while acting in good faith and pursuant to the engagement letter between the Company and the Company Stockholder Representative. The Company Stockholder Representative shall be indemnified by the Pre-Reverse Split Company Stockholders and the Company Stockholders from and against any loss, liability or expense incurred in good faith required on the part of the Company Stockholder Representative and arising out with respect to the Company Stockholder Representative’s execution, delivery or performance of its obligations under this Agreement or the Ancillary Documents to which the Company Stockholder Representative is or will be party or the consummation of the transactions contemplated hereby or thereby; and
(iv) None of the execution or delivery by the Company Stockholder Representative of this Agreement or any Ancillary Documents to which it is or will be a party, the performance by the Company Stockholder Representative of its obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby will, directly or indirectly (with or without due notice or lapse of time or both) (A) result in connection with the acceptance a violation or administration breach of any provision of the Company Stockholder Representative’s duties hereunderGoverning Documents, (B) result in each case as such lossa violation or breach of, liability or expense is suffered constitute a default or incurred. Any such claim for indemnification shall be satisfied first from give rise to any then available portion right of termination, Consent, cancellation, amendment, modification, suspension, revocation or acceleration under, any of the remaining Company Stockholder Representative Expense Fund andterms, if such amount is insufficient conditions or provisions of (x) any Contract to satisfy any such loss, liability or expense, from the first proceeds from any payments to be made by Buyer pursuant to this Agreement or the CVR Agreement otherwise available for distribution to the Pre-Reverse Split Company Stockholders and/or the Company Stockholders or by a claim against the Company Stockholders (with each Company Stockholder liable for the Pro Rata Share of any such claim that is represented by such Company Stockholder’s Company Capital Stock). Notwithstanding anything in this Agreement to the contrary, nothing herein shall relieve the Company Stockholders from their obligation to promptly pay such losses, liabilities and expenses as they are suffered or incurred, nor does it prevent which the Company Stockholder Representative from seeking is a party or (y) any remedies available to it at law or otherwise. In no event will the Company Stockholder Representative be required to advance its own funds on behalf of the Company Stockholders 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 Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Company Stockholder Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Company Stockholder Representative or the termination of this Agreement.
(e) In the event the Company Stockholder Representative becomes unable to perform the Company Stockholder Representative’s responsibilities hereunder or resigns from such position, the Company Stockholder Representative shall select another representative to fill the vacancy material Permits of the Company Stockholder Representative, or (C) violate, or constitute a breach under, any Order or applicable Law to which the Company Stockholder Representative or any of its properties or assets are subject or bound, except, in the case of any of clauses (ii) and upon such substituted representative’s written agreement (iii) above, as would not reasonably be expected to assume adversely affect the rights and responsibilities ability of the Company Stockholder Representative hereunderto perform, such substituted representative shall be deemed or otherwise comply with, any of its covenants, agreements or obligations under this Agreement or the Ancillary Documents in any material respect.
(v) There is no Proceeding pending or, to be the Company Stockholder Representative’s knowledge, threatened against or involving the Company Stockholder Representative for all purposes or any of this Agreement. Except as contemplated by its Affiliates that, if adversely decided or resolved, would reasonably be expected to adversely affect the previous sentence, ability of the Company Stockholder Representative may be removed only upon delivery to perform, or otherwise comply with, any of written notice to Bxxxx signed by Company Stockholders whoits covenants, as of immediately prior to agreements or obligations under this Agreement or the First Effective Time, held a majority Ancillary Documents in any material respect.
(by voting powervi) of the then outstanding shares of Company Capital Stock; provided that no such removal shall be effective until such time as a successor Company Stockholder Representative shall have been validly appointed hereunder. The Company Stockholder Representative shall provide Buyer prompt written notice of any replacement of Representative, solely in its capacity as the Company Stockholder Representative, including the identity acknowledges, represents, warrants and address of the new Company Stockholder Representative. Upon any replacement of the Company Stockholder Representativeagrees that (A) it has conducted its own independent review and analysis of, and, based thereon, has formed an independent judgment concerning, the Company Stockholder Representative being replaced shall transfer business, assets, condition, operations and prospects of, the Tailwind Parties and (B) it has been furnished with or given access to such documents and information about the Tailwind Parties and their respective businesses and operations as it and its Representatives have deemed necessary to enable it to make an informed decision with respect to the new Company Stockholder Representative the balance execution, delivery and performance of any unexpended Company Stockholder Representative Expense Fund.
(f) The Company Stockholder 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 Stockholder 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 Stockholder Representative without a breach of its obligations under this Section 3.9(f)), (ii) as required by applicable Law, (iii) to employees, advisors, agents or consultants of the Company Stockholder Representative (if applicable) and to the Company Stockholders, 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) is in connection with, and only to the extent required for, enforcement of rights or defense of claims (including, in each case, on behalf of the Company Stockholders) under this Agreement Ancillary Documents and the transactions contemplated hereby and thereby.
(gvii) For all purposes of In entering into this Agreement:
(i) Buyer shall Agreement and the Ancillary Documents to which it is or will be entitled to rely conclusively on the instructions and decisions of the Company Stockholder Representative as to the settlement of any disputes or claims under this Agreementa party, or any ancillary agreement contemplated hereby, or any other actions required or permitted to be taken by the Company Stockholder Representative hereunder, and no party hereunder or any Company Stockholder shall have any cause of action against Buyer for any action taken by Buyer in reliance upon the instructions or decisions of the Company Stockholder Representative;
(ii) the provisions of this Section 3.9 are independent and severable, are irrevocable (subject only to Section 3.9(e)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement;
(iii) except as specifically set forth herein, no Company Stockholder will have any right to bring any claim, cause of action, objection or complaint except through the Company Stockholder Representative, solely in its capacity as the Company Stockholder Representative, has relied solely on its own investigation and analysis and no other representations or warranties of any Tailwind Party or any other Person, either express or implied, and the Company Stockholder Representative shall have Representative, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that, none of the sole authority to act forTailwind Parties or any other Person makes or has made any representation or warranty, and enforce the rights ofeither express or implied, all Company Stockholders in connection with or related to this Agreement and Agreement, the Ancillary Documents or the transactions contemplated hereby; and
(iv) the provisions of this Section 3.9 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of each applicable Company Stockholder hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution hereby or otherwisethereby.
Appears in 1 contract
Samples: Business Combination Agreement (Tailwind Acquisition Corp.)
Company Stockholder Representative. (a) By their execution of the Letter of TransmittalXxxxxxx Xxxxx, approval of the Merger and adoption of this Agreement and/or their acceptance of any consideration pursuant to this Agreement or the CVR AgreementIII, the Pre-Reverse Split Company Stockholders and the Company Stockholders hereby irrevocably (subject only to Section 3.9(e)) appoint shall be the Company Stockholder Representative and as the representative, such shall serve as and have all powers as agent and attorney-in-fact of each Company Stockholder, for and agent on behalf of the Pre-Reverse Split such Company Stockholders and the Company Stockholders for all purposes in connection with the transactions contemplated by this Agreement and any other agreements ancillary hereto and in any litigation or arbitration involving this Agreement. In connection therewith, the Company Stockholder Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Company Stockholder Representative shall deem necessary or appropriate, and shall have the power and authority to:
Stockholders: (i) act for some or all of the Pre-Reverse Split Company Stockholders to give and the Company Stockholders with regard to all matters pertaining to this Agreement or any other agreements ancillary hereto;
receive notices and communications, (ii) act for the Pre-Reverse Split Company Stockholders and the Company Stockholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Company Stockholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement, including delivering any update have authority to or correction, amendment or modification of the Closing Date Allocation Schedule permitted by this Agreement;
(iv) do or refrain from doing, on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders, any further act or deed that the Company Stockholder Representative deems necessary or appropriate in the Company Stockholder Representative’s discretion relating to the subject matter of this Agreement, in each case as fully and completely as the Pre-Reverse Split Company Stockholders and the Company Stockholders could do if personally present;
(v) give and receive all notices required to be given or received by the Pre-Reverse Split Company Stockholders and the Company Stockholders under this Agreement;
(vi) agree to, negotiate, enter into settlements and compromises and/or of, and demand mediation and arbitration and comply with arbitration orders of courts and awards and court orders of arbitrators with respect to claims for indemnification any disputes involving any Parent Indemnity Claims made by Buyer under Article XI; and
Parent and the retaining of any portion of the Escrow Fund by Parent thereunder, (viiiii) receive service of process to litigate, mediate, arbitrate, defend, enforce or to take any other actions and execute any documents that the Company Stockholder Representative deems advisable in connection with enforcing any claims rights or obligations or defending any claim or action under this Agreement or the Escrow Agreement on behalf of the Company Stockholders or their property or against any ancillary agreement Person who has caused a loss or damage to the Company Stockholders in connection with the transactions contemplated herein, (iv) to sign receipts, consents, or other documents to effect the transactions contemplated hereby, (v) to have the authority to withhold or direct the disposition of the Escrow Fund pursuant to Section 3.5(e) and (vi) to take any and all actions necessary or appropriate in the judgment of the Company Stockholder Representative for the accomplishment of the foregoing. If Xxxx Xxxxx ceases to act as Company Stockholder Representative for any reason, such Company Stockholder Representative or his agent shall notify Parent of such Company Stockholder Representative’s intent to resign as Company Stockholder Representative, at least thirty (30) days prior to the effective date of such resignation, and the Company Stockholders entitled to receive a majority of the Escrow Shares shall, by written notice to Parent, appoint a successor Company Stockholder Representative within thirty (30) days. Notice or communications to or from any Company Stockholder Representative shall constitute notice to or from each of the Company Stockholders.
(b) All decisions and actions Subject to Section 3.5(a), in the event of: (i) the death or permanent disability of the Company Stockholder Representative, (ii) his, her or its resignation as a Company Stockholder Representative, or (iii) the removal of the Company Stockholder Representative on behalf by Company Stockholders entitled to receive a majority of the Pre-Reverse Split Escrow Shares, a successor Company Stockholders and Stockholder Representative shall be elected by the Company Stockholders entitled to receive a majority of the Escrow Shares. Each successor Company Stockholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Company Stockholder Representative, and the term “Company Stockholder Representative” as used herein shall be deemed to be facts ascertainable outside of this Agreement and shall be binding upon all Pre-Reverse Split Company Stockholders and Company Stockholders, and no Pre-Reverse Split include successor Company Stockholder or Company Stockholder shall have the right to object, dissent, protest or otherwise contest the sameRepresentatives.
(c) At the First Effective Time, Buyer shall pay an amount in cash equal to $25,000 (the “Company Stockholder Representative Expense Amount”) to the Company Stockholder Representative, which Company Stockholder Representative Expense Amount shall be held by the Company Stockholder Representative in a segregated account (the “Company Stockholder Representative Expense Fund”). The Company Stockholder Representative Expense Fund will be used solely for the purposes of paying directly, or reimbursing the Company Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Company Stockholders will not receive any interest or earnings on the Company Stockholder Representative Expense Fund and irrevocably transfer and assign to the Company Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Company Stockholder Representative will not be liable for any loss of principal of the Company Stockholder Representative Expense Fund other than as a result of its gross negligence or willful misconduct. The Company Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Company Stockholder Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing. In no event shall Buyer or the Final Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse the Company Stockholder Representative for any expenses payable from the Company Stockholder Representative Expense Fund. Upon the determination of the Company Stockholder Representative that retaining any portion of the Company Stockholder Representative Expense Fund is no longer necessary, or as directed by the advisory committee to the Company Stockholder Representative as set forth in the engagement letter between the Company and the Company Stockholder Representative, the Company Stockholder Representative shall deliver any then remaining portion of the Company Stockholder Representative Expense Fund to Buyer, after which Buyer shall, subject to Section 3.14, promptly issue to each Company Stockholder a number of Buyer Ordinary Shares with a value, based on the Buyer Share Value, equal to such Company Stockholder’s Pro Rata Share of such remaining portion of the Company Stockholder Representative Expense Fund.
(d) The Company Stockholder Representative shall act for the Pre-Reverse Split Company Stockholders and the Company Stockholders on all of the matters set forth in this Agreement and any other agreements ancillary hereto in the manner the Company Stockholder Representative believes to be in the best interest of the Pre-Reverse Split Company Stockholders and the Company Stockholders. The Company Stockholder Representative is authorized to act on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders notwithstanding any dispute or disagreement among the Pre-Reverse Split Company Stockholders or the Company Stockholders. In taking any action as Company Stockholder Representative, the Company Stockholder 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 Stockholder Representative reasonably believes to be authorized thereunto. The Company Stockholder Representative may, in all questions arising hereunderunder this Agreement and the Escrow Agreement, rely on the advice of counsel, and shall not be liable to the Company Stockholders for any action taken or not taken as a Company Stockholder Representative in the absence of such Company Stockholder Representative’s willful misconduct.
(d) A decision, act, consent or instruction of the Company Stockholder Representative shall constitute a decision of all the Company Stockholders, and shall be final, binding and conclusive upon each of the Company Stockholders, and Parent, the Company and the Escrow Agent may rely upon any decision, act, consent or instruction of the Company Stockholder Representative as being the decision, act, consent or instruction of each and all of the Company Stockholders. Parent, the Company and the Escrow Agent are relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction. Although the Company Stockholder Representative shall not be liable obligated to obtain instructions from the Company Stockholders prior to any Pre-Reverse Split decision, act, consent or instruction, if, and to the extent that, the Company Stockholder or Representative receives any written instructions from the Company Stockholders entitled to receive a majority of the Escrow Shares held by the Escrow Agent, the Company Stockholder for anything doneRepresentative shall comply with such instructions.
(e) The Company Stockholders shall share, omitted on a pro rata basis in relation to their holdings of Parent Common Stock immediately after the Effective Time, the professional fees and expenses of any attorney, accountants or suffered in good faith other advisors retained by the Company Stockholder Representative based on such advice. in connection with any action taken or not taken as a Company Stockholder Representative.
(f) The Company Stockholders shall jointly and severally indemnify, defend and save harmless the Company Stockholder Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement its members, managers, directors, officer, agents and no implied covenants or obligations shall be read into this Agreement against the Company Stockholder Representative. The Company Stockholder Representative shall not have any liability to any of the Company Stockholders for any act done or omitted hereunder as Company Stockholder Representative while acting in good faith and pursuant to the engagement letter between the Company and the Company Stockholder Representative. The Company Stockholder Representative shall be indemnified by the Pre-Reverse Split Company Stockholders and the Company Stockholders employees from and against any and all loss, liability or expense incurred (including the fees and expenses of in good faith on the part house or outside counsel and experts and their staffs and all expense of the Company Stockholder Representative document location, duplication and shipment) arising out of or in connection with the acceptance or administration of the Company Stockholder Representative’s duties hereunderexecution and performance of this Agreement, in each case as to the extent that such loss, liability or expense is suffered finally adjudicated to have been primarily caused by the gross negligence or incurred. Any such claim for indemnification shall be satisfied first from any then available portion willful misconduct of the remaining Company Stockholder Representative Expense Fund and, if such amount is insufficient to satisfy any such loss, liability or expense, from the first proceeds from any payments to be made by Buyer pursuant to this Agreement or the CVR Agreement otherwise available for distribution to the Pre-Reverse Split Company Stockholders and/or the Company Stockholders or by a claim against the Company Stockholders (with each Company Stockholder liable for the Pro Rata Share of any such claim that is represented by such Company Stockholder’s Company Capital Stock). Notwithstanding anything in this Agreement to the contrary, nothing herein shall relieve the Company Stockholders from their obligation to promptly pay such losses, liabilities and expenses as they are suffered or incurred, nor does it prevent the Company Stockholder Representative from seeking any remedies available to it at law or otherwiseRepresentative. In no event will the Company Stockholder Representative be required to advance its own funds on behalf of the The Company Stockholders or otherwise. Notwithstanding anything in this Agreement to acknowledge and agree that 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 Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Company Stockholder Representative under this section. The foregoing indemnities will shall survive the Closing, the resignation or removal of the Company Stockholder Representative or the termination of this Agreement.
(e) In the event the Company Stockholder Representative becomes unable to perform the Company Stockholder Representative’s responsibilities hereunder or resigns from such position, the Company Stockholder Representative shall select another representative to fill the vacancy of the Company Stockholder Representative, and upon such substituted representative’s written agreement to assume the rights and responsibilities of the Company Stockholder Representative hereunder, such substituted representative shall be deemed to be the Company Stockholder Representative for all purposes of this Agreement. Except as contemplated by the previous sentence, the Company Stockholder Representative may be removed only upon delivery of written notice to Bxxxx signed by Company Stockholders who, as of immediately prior to the First Effective Time, held a majority (by voting power) of the then outstanding shares of Company Capital Stock; provided that no such removal shall be effective until such time as a successor Company Stockholder Representative shall have been validly appointed hereunder. The Company Stockholder Representative shall provide Buyer prompt written notice of any replacement of the Company Stockholder Representative, including the identity and address of the new Company Stockholder Representative. Upon any replacement of the Company Stockholder Representative, the Company Stockholder Representative being replaced shall transfer to the new Company Stockholder Representative the balance of any unexpended Company Stockholder Representative Expense Fund.
(f) The Company Stockholder 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 Stockholder 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 Stockholder Representative without a breach of its obligations under this Section 3.9(f)), (ii) as required by applicable Law, (iii) to employees, advisors, agents or consultants of the Company Stockholder Representative (if applicable) and to the Company Stockholders, 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) is in connection with, and only to the extent required for, enforcement of rights or defense of claims (including, in each case, on behalf of the Company Stockholders) under this Agreement and the transactions contemplated hereby and thereby.
(g) For all purposes of this Agreement:
(i) Buyer shall be entitled to rely conclusively on the instructions and decisions of the Company Stockholder Representative as to the settlement of any disputes or claims under this Agreement, or any ancillary agreement contemplated hereby, or any other actions required or permitted to be taken by the Company Stockholder Representative hereunder, and no party hereunder or any Company Stockholder shall have any cause of action against Buyer for any action taken by Buyer in reliance upon the instructions or decisions of the Company Stockholder Representative;
(ii) the provisions of this Section 3.9 are independent and severable, are irrevocable (subject only to Section 3.9(e)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement;
(iii) except as specifically set forth herein, no Company Stockholder will have any right to bring any claim, cause of action, objection or complaint except through the Company Stockholder Representative, and the Company Stockholder Representative shall have the sole authority to act for, and enforce the rights of, all Company Stockholders in connection with this Agreement and the transactions contemplated hereby; and
(iv) the provisions of this Section 3.9 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of each applicable Company Stockholder hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Peplin Inc)
Company Stockholder Representative. (a) By their execution In order to administer efficiently the determination and payment of the Letter Cash Adjustment Amount, the Special Adjustment Amount and the Working Capital Adjustment Amount and the defense and/or settlement of Transmittal, approval any Parent Claims for which the Company Stockholders may be required to indemnify members of the Merger Parent Group (as defined in Section 8.1(a)) pursuant to Article 8 hereof, the Company Stockholders, by their adoption and adoption approval of this Agreement and/or their acceptance of any consideration pursuant to this Agreement or the CVR Agreement, the Pre-Reverse Split Company Stockholders and the Company Stockholders hereby Transaction Incentive Plan Recipients, through separate instruments, irrevocably (subject only to Section 3.9(e)) appoint the Company Stockholder Representative as the representativetheir agent, attorney-in-fact and agent representative (with full power of substitution in the Pre-Reverse Split Company Stockholders and the Company Stockholders for all purposes in connection with the transactions contemplated premises), and, by this Agreement and any other agreements ancillary hereto and in any litigation or arbitration involving this Agreement. In connection therewithhis execution hereof, the Company Stockholder Representative is authorized to do or refrain from doing all further acts hereby accepts such appointment.
(b) The Company Stockholders and things, and to execute all such documents as the Transaction Incentive Plan Recipients hereby authorize the Company Stockholder Representative shall deem necessary or appropriate, and shall have the power and authority to:
(i) act for some or to take all action necessary in connection with the acceptance, rejection, determination and payment of the Pre-Reverse Split Cash Adjustment Amount, the Special Adjustment Amount and the Working Capital Adjustment Amount and the defense and/or settlement of any Parent Claims for which the Company Stockholders and the Company Stockholders with regard Transaction Incentive Plan Recipients may be required to all matters pertaining indemnify members of the Parent Group pursuant to this Agreement or any other agreements ancillary hereto;
Article 8 hereof and (ii) act for the Pre-Reverse Split Company Stockholders and the Company Stockholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Company Stockholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement, including delivering any update to or correction, amendment or modification of the Closing Date Allocation Schedule permitted by this Agreement;
(iv) do or refrain from doing, on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders, any further act or deed that the Company Stockholder Representative deems necessary or appropriate in the Company Stockholder Representative’s discretion relating to the subject matter of this Agreement, in each case as fully and completely as the Pre-Reverse Split Company Stockholders and the Company Stockholders could do if personally present;
(v) give and receive all notices required to be given or received by under this Agreement, the Pre-Reverse Split Company Stockholders Escrow Agreement and the other agreements contemplated hereby to which all of the Company Stockholders under this Agreement;
(vi) 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 Buyer under Article XI; and
(vii) receive service of process in connection with any claims under this Agreement or any ancillary agreement contemplated herebythe Transaction Incentive Plan Recipients or their respective properties are subject.
(bc) In the event that the Company Stockholder Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, or in the event that the Company Stockholder Representative shall be serving as an officer, employee or consultant of Parent six months after the Effective Date, the remaining Company Stockholders shall, by election of the Company Stockholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the shares of Company Stock issued and outstanding immediately prior to the Effective Time, select another representative to fill such vacancy and such substituted representative shall be deemed to be the Company Stockholder Representative for all purposes of this Agreement.
(d) All decisions and actions of by the Company Stockholder Representative on behalf Representative, including the defense or settlement of any Parent Claims for which the Pre-Reverse Split Company Stockholders and the Company Stockholders shall Transaction Incentive Plan Recipients may be deemed required to be facts ascertainable outside indemnify members of this Agreement and the Parent Group pursuant to Article 8 hereof, shall be binding upon all Pre-Reverse Split of the Company Stockholders and Company Stockholdersthe Transaction Incentive Plan Recipients, and no Pre-Reverse Split Company Stockholder or Company Stockholder Transaction Incentive Plan Recipient shall have the right to object, dissent, protest or otherwise contest the same.
(ce) At the First Effective Time, Buyer shall pay an amount in cash equal to $25,000 (the “Company Stockholder Representative Expense Amount”) to the Company Stockholder Representative, which Company Stockholder Representative Expense Amount shall be held by the Company Stockholder Representative in a segregated account (the “Company Stockholder Representative Expense Fund”). The Company Stockholder Representative Expense Fund will be used solely for the purposes of paying directly, or reimbursing the Company Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Company Stockholders will not receive any interest or earnings on the Company Stockholder Representative Expense Fund and irrevocably transfer and assign to the Company Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Company Stockholder Representative will not be liable for any loss of principal of the Company Stockholder Representative Expense Fund other than as a result of its gross negligence or willful misconduct. The Company Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Company Stockholder Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing. In no event shall Buyer or the Final Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse the Company Stockholder Representative for any expenses payable from the Company Stockholder Representative Expense Fund. Upon the determination of the Company Stockholder Representative that retaining any portion of the Company Stockholder Representative Expense Fund is no longer necessary, or as directed by the advisory committee to the Company Stockholder Representative as set forth in the engagement letter between the Company and the Company Stockholder Representative, the Company Stockholder Representative shall deliver any then remaining portion of the Company Stockholder Representative Expense Fund to Buyer, after which Buyer shall, subject to Section 3.14, promptly issue to each Company Stockholder a number of Buyer Ordinary Shares with a value, based on the Buyer Share Value, equal to such Company Stockholder’s Pro Rata Share of such remaining portion of the Company Stockholder Representative Expense Fund.
(d) The Company Stockholder Representative shall act for the Pre-Reverse Split Company Stockholders and the Company Stockholders on all of the matters set forth in this Agreement and any other agreements ancillary hereto in the manner the Company Stockholder Representative believes to be in the best interest of the Pre-Reverse Split Company Stockholders and the Company Stockholders. The Company Stockholder Representative is authorized to act on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders notwithstanding any dispute or disagreement among the Pre-Reverse Split Company Stockholders or the Company Stockholders. In taking any action as Company Stockholder Representative, the Company Stockholder 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 Stockholder Representative reasonably believes to be authorized thereunto. The Company Stockholder Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Company Stockholder Representative shall not be liable to any Pre-Reverse Split Company Stockholder or Company Stockholder for anything done, omitted or suffered in good faith by the Company Stockholder Representative based on such advice. The Company Stockholder 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 Stockholder Representative. The Company Stockholder Representative shall not have any liability to any of the Company Stockholders for any act done or omitted hereunder as Company Stockholder Representative while acting in good faith and pursuant to the engagement letter between the Company and the Company Stockholder Representative. The Company Stockholder Representative shall be indemnified by the Pre-Reverse Split Company Stockholders and the Company Stockholders from and against any loss, liability or expense incurred in good faith on the part of the Company Stockholder Representative and arising out of or in connection with the acceptance or administration of the Company Stockholder Representative’s duties hereunder, in each case as such loss, liability or expense is suffered or incurred. Any such claim for indemnification shall be satisfied first from any then available portion of the remaining Company Stockholder Representative Expense Fund and, if such amount is insufficient to satisfy any such loss, liability or expense, from the first proceeds from any payments to be made by Buyer pursuant to this Agreement or the CVR Agreement otherwise available for distribution to the Pre-Reverse Split Company Stockholders and/or the Company Stockholders or by a claim against the Company Stockholders (with each Company Stockholder liable for the Pro Rata Share of any such claim that is represented by such Company Stockholder’s Company Capital Stock). Notwithstanding anything in this Agreement to the contrary, nothing herein shall relieve the Company Stockholders from their obligation to promptly pay such losses, liabilities and expenses as they are suffered or incurred, nor does it prevent the Company Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Company Stockholder Representative be required to advance its own funds on behalf of the Company Stockholders 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 Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Company Stockholder Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Company Stockholder Representative or the termination of this Agreement.
(e) In the event the Company Stockholder Representative becomes unable to perform the Company Stockholder Representative’s responsibilities hereunder or resigns from such position, the Company Stockholder Representative shall select another representative to fill the vacancy of the Company Stockholder Representative, and upon such substituted representative’s written agreement to assume the rights and responsibilities of the Company Stockholder Representative hereunder, such substituted representative shall be deemed to be the Company Stockholder Representative for all purposes of this Agreement. Except as contemplated by the previous sentence, the Company Stockholder Representative may be removed only upon delivery of written notice to Bxxxx signed by Company Stockholders who, as of immediately prior to the First Effective Time, held a majority (by voting power) of the then outstanding shares of Company Capital Stock; provided that no such removal shall be effective until such time as a successor Company Stockholder Representative shall have been validly appointed hereunder. The Company Stockholder Representative shall provide Buyer prompt written notice of any replacement of the Company Stockholder Representative, including the identity and address of the new Company Stockholder Representative. Upon any replacement of the Company Stockholder Representative, the Company Stockholder Representative being replaced shall transfer to the new Company Stockholder Representative the balance of any unexpended Company Stockholder Representative Expense Fund.
(f) The Company Stockholder 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 Stockholder 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 Stockholder Representative without a breach of its obligations under this Section 3.9(f)), (ii) as required by applicable Law, (iii) to employees, advisors, agents or consultants of the Company Stockholder Representative (if applicable) and to the Company Stockholders, 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) is in connection with, and only to the extent required for, enforcement of rights or defense of claims (including, in each case, on behalf of the Company Stockholders) under this Agreement and the transactions contemplated hereby and thereby.
(g) For all purposes of this AgreementTransaction Incentive Plan Recipients agree that:
(i1) Buyer Parent shall be entitled able to rely conclusively on the instructions and decisions of the Company Stockholder Representative as to the determination and payment of the Cash Adjustment Amount, the Special Adjustment Amount and the Working Capital Adjustment Amount and the settlement of any disputes or claims under this Agreement, or any ancillary agreement contemplated hereby, Parent Claims for indemnification of members of the Parent Group pursuant to Article 8 hereof or any other actions required or permitted to be taken by the Company Stockholder Representative hereunder, and no party hereunder or any hereunder, Company Stockholder or Transaction Incentive Plan Recipient shall have any cause of action against Buyer any member of the Parent Group for any action taken by Buyer any member of the Parent Group in reliance upon the instructions or decisions of the Company Stockholder Representative;
(ii2) all actions, decisions and instructions of the Company Stockholder Representative shall be conclusive and binding upon all of the Company Stockholders and Transaction Incentive Plan Recipients and no Company Stockholder or Transaction Incentive Plan Recipient shall have any cause of action against the Company Stockholder Representative for any action taken or not taken, decision made or instruction given by the Company Stockholder Representative under this Agreement, except for fraud, gross negligence, willful misconduct or bad faith by the Company Stockholder Representative;
(3) the Company Common Stockholders and the Transaction Incentive Plan Recipients shall indemnify and hold harmless, in accordance with the respective amounts of Common Merger Consideration, Closing Transaction Incentive Plan Payments and Contingent Transaction Incentive Plan Payments received by any such Person, the Company Stockholder Representative from all loss, liability or expense (including the reasonable fees and expenses of counsel) arising out of or in connection with the Company Stockholder Representative’s execution and performance of this Agreement and the Escrow Agreement, except for fraud, gross negligence, willful misconduct or bad faith by the Company Stockholder Representative; provided that the portion of any such indemnification obligations to be borne by (a) the Company Common Stockholders shall be in proportion to their respective Common Pro Rata Percentage and (b) the Transaction Incentive Plan Recipients shall be in proportion to the respective amount each Transaction Incentive Plan Recipient receives upon distributions of Closing Transaction Incentive Plan Payments and Contingent Transaction Incentive Plan Payments; provided further that if the portion of any such indemnification obligations to be borne by the Transaction Incentive Plan Recipients exceeds the aggregate amount that the Transaction Incentive Plan Recipients receive upon distributions of Closing Transaction Incentive Plan Payments and Contingent Transaction Incentive Plan Payments, then the Company Common Stockholders shall be responsible for such excess; provided further that, no Company Common Stockholder or Transaction Incentive Plan Recipient shall be liable under this paragraph 2.13(e)(3) in an amount in excess of the aggregate amount of payments received by such person pursuant to this Agreement;
(4) the provisions of this Section 3.9 2.13 are independent and severable, are irrevocable (subject only to Section 3.9(e)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder or Transaction Incentive Plan Recipient may have in connection with the transactions contemplated by this Agreement;
(iii) except as specifically set forth herein, no Company Stockholder will have any right to bring any claim, cause of action, objection or complaint except through the Company Stockholder Representative, and the Company Stockholder Representative shall have the sole authority to act for, and enforce the rights of, all Company Stockholders in connection with this Agreement and the transactions contemplated hereby; and
(iv5) the provisions of this Section 3.9 2.13 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees successors and successors assigns of each Company StockholderStockholder and Transaction Incentive Plan Recipient, and any references in this Agreement to a Company Stockholder or the Company Stockholders or to a Transaction Incentive Plan Recipient or Transaction Incentive Plan Recipients shall mean and include the successors to the rights of each applicable the Company Stockholder Stockholders or Transaction Incentive Plan Recipients, respectively, hereunder, whether pursuant to testamentary disposition, the Laws laws of descent and distribution or otherwise.
(f) All reasonable fees and expenses incurred by the Company Stockholder Representative in connection with this Agreement shall be paid in accordance with the Applicable Ratio by the Company Common Stockholders (in proportion to their respective Common Pro Rata Percentages) and the Transaction Incentive Plan Recipients (in proportion to the respective amount each Transaction Incentive Plan Recipient receives upon distributions of Closing Transaction Incentive Plan Payments and Contingent Transaction Incentive Plan Payments); provided that the Company Stockholder Representative may, at his option, (i) at the Closing, withhold a portion of the proceeds to be paid to the Company Common Stockholders and the Transaction Incentive Plan Recipients (not to exceed $50,000 in the aggregate) to satisfy estimated future third party fees and expenses that the Company Stockholder Representative will or reasonably expects to pay in connection with the performance of his responsibilities under this Agreement as of or after the Closing Date, and/or (ii) withhold from any distribution of the Escrow Fund to the Company Common Stockholders and the Transaction Incentive Plan Recipients, an amount equal to any reasonable third party fees and expenses he has paid or reasonably expects to pay in connection with his responsibilities under this Agreement as of the date of such distribution. Any excess amounts held by the Company Stockholder Representative after payment in full of all such third party expenses shall be distributed by the Company Stockholder Representative according to the Applicable Ratio at the time of distribution.
(g) The Company Stockholder Representative covenants to promptly deliver all payments to be distributed by the Company Stockholder Representative pursuant to the terms of this Agreement and the other transactions contemplated hereby. With respect to all Transaction Payments to be distributed by the Company Stockholder Representative pursuant to the terms of this Agreement, the Company Stockholder Representative shall distribute all such payments strictly in accordance with the terms of the Transaction Incentive Plan (with respect to payments to be made under the Transaction Incentive Plan) and the Supplemental Bonus Plan (with respect to the Supplemental Bonus Plan Payments to be made).
(h) The Company Stockholder Representative is authorized to enter into the Escrow Agreement on the behalf of the Company Stockholders and the Transaction Incentive Plan Recipients which Agreement may require the Company Stockholders and the Transaction Incentive Plan Recipients to indemnify the Escrow Agent for certain fees, expenses and other liabilities.
Appears in 1 contract
Company Stockholder Representative. (a) By To facilitate the administration of the transactions contemplated by this 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 Stockholder Representative under this Agreement, the Company Stockholders, by their execution Confidential Portions of this Exhibit marked as [***] have been omitted pursuant to a request for confidential treatment and have been filed separately with the Letter of Transmittal, approval of the Merger Securities and adoption Exchange Commission. and delivery of this Agreement and/or their acceptance of any consideration pursuant to this Agreement or the CVR AgreementWritten Consent, the Pre-Reverse Split Company Stockholders and the Company Stockholders hereby irrevocably (subject only to Section 3.9(e)i) appoint designate the Company Stockholder Representative as the their representative, attorney-in-fact and agent of the Pre-Reverse Split Company Stockholders and the Company Stockholders for all purposes in connection with the transactions contemplated by this Agreement and any other agreements ancillary hereto and in any litigation or arbitration involving this Agreement. In connection therewith, (ii) authorize the Company Stockholder Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Company Stockholder Representative shall deem necessary or appropriate, and shall have the power and authority to:
(i) act for some or all of the Pre-Reverse Split Company Stockholders and the Company Stockholders with regard to all matters pertaining to this Agreement or any other agreements ancillary hereto;
(ii) act for the Pre-Reverse Split Company Stockholders and the Company Stockholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Company Stockholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement, including delivering any update to or correction, amendment or modification of the Closing Date Allocation Schedule permitted by this Agreement;
(iv) do or refrain from doing, on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders, any further act or deed that the Company Stockholder Representative deems necessary or appropriate in the Company Stockholder Representative’s discretion relating to the subject matter of this Agreement, in each case as fully and completely as the Pre-Reverse Split Company Stockholders and the Company Stockholders could do if personally present;
(v) give and receive all notices required to be given or received by the Pre-Reverse Split Company Stockholders and the Company Stockholders under this Agreement;
(vi) agree to, negotiateto amend this Agreement, enter into settlements and compromises and/or comply with arbitration awards to take any and court orders with respect all additional action as is contemplated to claims for indemnification made be taken by Buyer under Article XI; and
(vii) receive service of process in connection with any claims under this Agreement or any ancillary agreement contemplated hereby.
(b) All decisions and actions of on their behalf or by the Company Stockholder Representative on behalf by the terms of the Pre-Reverse Split Company Stockholders and the Company Stockholders this Agreement. All such actions shall be deemed to be facts ascertainable outside of this Agreement and shall be binding upon all Pre-Reverse Split on the Company Stockholders and Stockholders.
(b) In the event that the Company Stockholder Representative named in the Preamble above, or any successor thereto, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority in interest of the Company Stockholders, voting together as a single class based on the relative size of their respective ownership interests in the Company as of immediately prior to the Merger 1 Effective Time (as reflected on the Allocation Schedule) (the “Stockholder Majority”) shall select another representative to fill the vacancy of the Company Stockholder Representative named in this Agreement, and such substituted representative shall be deemed to be the Company Stockholder Representative for all purposes of this Agreement and the documents delivered pursuant hereto; provided, however, that such substitution shall not be effective prior to the time that the Company Stockholders provide written notice to the Buyer of such substitution. The Stockholder Majority may, from time to time, upon written notice to the Company Stockholder Representative and the Buyer, remove the Company Stockholder Representative and appoint a new Company Stockholder Representative in the place thereof.
(c) All decisions and actions by the Company Stockholder Representative in connection with the transactions contemplated by this Agreement, including the resolution and disposition of any claims for indemnification pursuant to Article VII and any other actions required or permitted to be taken by the Company Stockholder Representative under this Agreement, shall be binding upon each Company Stockholder, and no Pre-Reverse Split Company Stockholder or Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
(cd) At Any decision, act, consent, waiver or instruction of the First Effective Time, Buyer shall pay an amount in cash equal to $25,000 (the “Company Stockholder Representative Expense Amount”) in connection with this Agreement shall constitute a decision of all the Company Stockholders and shall be final, binding and conclusive upon each Company Stockholder, and the Buyer and the Surviving Corporation shall be entitled to rely conclusively on the decisions, acts, consents, waivers and instructions of the Company Stockholder RepresentativeRepresentative as to any determination relating to the transactions contemplated by this Agreement as being the decision, which act, consent, waiver or instruction of every Company Stockholder Representative Expense Amount shall Stockholder, including the resolution and disposition of any claims for indemnification pursuant to Article VII and any other actions required or permitted to be held taken by the Company Stockholder Representative in a segregated account (under this Agreement, all of which shall be binding upon each Company Stockholder; no Person shall have any cause of action against the “Company Stockholder Representative Expense Fund”). The Company Stockholder Representative Expense Fund will be used solely for Buyer, the purposes of paying directlySurviving Corporation, or reimbursing any of their respective directors, officers, employees, agents or Affiliates for any action taken by the Buyer in reliance upon any decision, act, consent, waiver or instruction of the Company Stockholder Representative for, any third party expenses pursuant to this Agreement Representative; and the agreements ancillary hereto. The Company Stockholders will not receive Buyer and the Surviving Corporation are each hereby relieved from any interest liability to any Person for any acts done by it in accordance with such decision, act, consent, waiver or earnings on instruction of the Company Stockholder Representative Expense Fund Representative. Confidential Portions of this Exhibit marked as [***] have been omitted pursuant to a request for confidential treatment and irrevocably transfer have been filed separately with the Securities and assign to the Company Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Company Stockholder Representative will not be liable for any loss of principal Exchange Commission.
(e) All actions, decisions and instructions of the Company Stockholder Representative Expense Fund other than as a result of its gross negligence or willful misconduct. The shall be conclusive and binding upon each Company Stockholder Representative will hold these funds separate from its corporate fundsand none of the Buyer, will not use these funds for its operating expenses the Surviving Corporation or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Company Stockholder Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time shall have any cause of Closing. In no event shall Buyer or the Final Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse action against the Company Stockholder Representative for any expenses payable from the Company Stockholder Representative Expense Fund. Upon the determination of the Company Stockholder Representative that retaining any portion of the Company Stockholder Representative Expense Fund is no longer necessaryaction taken, decision made or as directed by the advisory committee to the Company Stockholder Representative as set forth in the engagement letter between the Company and the Company Stockholder Representative, the Company Stockholder Representative shall deliver any then remaining portion of the Company Stockholder Representative Expense Fund to Buyer, after which Buyer shall, subject to Section 3.14, promptly issue to each Company Stockholder a number of Buyer Ordinary Shares with a value, based on the Buyer Share Value, equal to such Company Stockholder’s Pro Rata Share of such remaining portion of the Company Stockholder Representative Expense Fund.
(d) The Company Stockholder Representative shall act for the Pre-Reverse Split Company Stockholders and the Company Stockholders on all of the matters set forth in this Agreement and any other agreements ancillary hereto in the manner the Company Stockholder Representative believes to be in the best interest of the Pre-Reverse Split Company Stockholders and the Company Stockholders. The Company Stockholder Representative is authorized to act on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders notwithstanding any dispute or disagreement among the Pre-Reverse Split Company Stockholders or the Company Stockholders. In taking any action as Company Stockholder Representative, the Company Stockholder Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, instruction given by any Person whom the Company Stockholder Representative reasonably believes to be authorized thereunto. The Company Stockholder Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Company Stockholder Representative shall not be liable to any Pre-Reverse Split Company Stockholder or Company Stockholder for anything done, omitted or suffered in good faith by the Company Stockholder Representative based on such advice. The Company Stockholder Representative undertakes to perform such duties and only such duties as are specifically set forth in under this Agreement, except for fraud or willful breach of this Agreement and no implied covenants or obligations shall be read into this Agreement against by the Company Stockholder Representative. .
(f) The provisions of this Section 1.9 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 Stockholder may have in connection with the transactions contemplated by this Agreement.
(g) The Company Stockholders shall severally (based on the relative size of their respective ownership interests in the Company as of immediately prior to the Merger 1 Effective Time (as reflected on the Allocation Schedule)) and not jointly indemnify the Company Stockholder Representative shall not have any liability to any of the Company Stockholders for any act done or omitted hereunder as Company Stockholder Representative while acting in good faith and pursuant to the engagement letter between the Company and the Company Stockholder Representative. The Company Stockholder Representative shall be indemnified by the Pre-Reverse Split Company Stockholders and the Company Stockholders from and against any loss, liability or reasonable expense incurred in good without gross negligence or bad faith on the part of the Company Stockholder Representative and arising out of or in connection with the acceptance or administration of its duties hereunder (“Representative Reimbursable Expenses”). Without limiting the foregoing, the Company Stockholder Representative shall have the right to engage legal counsel and other professional advisers to assist it in the administration of the Company Stockholder Representative’s duties hereunder, in each case as such loss, liability or expense is suffered or incurred. Any such claim for indemnification shall be satisfied first from and any then available portion of the remaining Company Stockholder Representative Expense Fund and, if such amount is insufficient to satisfy any such loss, liability or expense, from the first proceeds from any payments to be made by Buyer pursuant to this Agreement or the CVR Agreement otherwise available for distribution to the Pre-Reverse Split Company Stockholders and/or the Company Stockholders or by a claim against the Company Stockholders (with each Company Stockholder liable for the Pro Rata Share of any such claim that is represented by such Company Stockholder’s Company Capital Stock). Notwithstanding anything in this Agreement to the contrary, nothing herein shall relieve the Company Stockholders from their obligation to promptly pay such losses, liabilities and all reasonable and documented fees and expenses as they are suffered or incurred, nor does it prevent the Company Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Company Stockholder Representative be required to advance its own funds on behalf of the Company Stockholders 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 Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Company Stockholder Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Company Stockholder Representative or the termination of this Agreement.
(e) In the event the Company Stockholder Representative becomes unable to perform the Company Stockholder Representative’s responsibilities hereunder or resigns from such position, the Company Stockholder Representative shall select another representative to fill the vacancy of the Company Stockholder Representative, counsel and upon such substituted representative’s written agreement to assume the rights and responsibilities of the Company Stockholder Representative hereunder, such substituted representative advisers shall be deemed to be the Company Stockholder Representative for all purposes of this Agreement. Except as contemplated by the previous sentence, the Company Stockholder Representative may be removed only upon delivery of written notice to Bxxxx signed by Company Stockholders who, as of immediately prior to the First Effective Time, held a majority (by voting power) of the then outstanding shares of Company Capital Stock; provided that no such removal shall be effective until such time as a successor Company Stockholder Representative shall have been validly appointed hereunder. The Company Stockholder Representative shall provide Buyer prompt written notice of any replacement of the Company Stockholder Representative, including the identity and address of the new Company Stockholder Representative. Upon any replacement of the Company Stockholder Representative, the Company Stockholder Representative being replaced shall transfer to the new Company Stockholder Representative the balance of any unexpended Company Stockholder Representative Expense Fund.
(f) The Company Stockholder 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 Stockholder 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 Stockholder Representative without a breach of its obligations under this Section 3.9(f)), (ii) as required by applicable Law, (iii) to employees, advisors, agents or consultants of the Company Stockholder Representative (if applicable) and to the Company Stockholders, 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) is in connection with, and only to the extent required for, enforcement of rights or defense of claims (including, in each case, on behalf of the Company Stockholders) under this Agreement and the transactions contemplated hereby and thereby.
(g) For all purposes of this Agreement:
(i) Buyer shall be entitled to rely conclusively on the instructions and decisions of the Company Stockholder Representative as to the settlement of any disputes or claims under this Agreement, or any ancillary agreement contemplated hereby, or any other actions required or permitted to be taken by the Company Stockholder Representative hereunder, and no party hereunder or any Company Stockholder shall have any cause of action against Buyer for any action taken by Buyer in reliance upon the instructions or decisions of the Company Stockholder Representative;
(ii) the provisions of this Section 3.9 are independent and severable, are irrevocable (subject only to Section 3.9(e)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement;
(iii) except as specifically set forth herein, no Company Stockholder will have any right to bring any claim, cause of action, objection or complaint except through the Company Stockholder RepresentativeReimbursable Expenses, and the Company Stockholder Representative shall have the sole authority not be liable to act for, and enforce the rights of, all any Company Stockholders in connection with Stockholder for any action taken or omitted to be taken under this Agreement and in good faith in accordance with the transactions contemplated hereby; and
(iv) the provisions advice of this Section 3.9 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of each applicable Company Stockholder hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution such counsel or otherwiseother professional advisors.
Appears in 1 contract
Samples: Agreement and Plan of Merger (MeiraGTx Holdings PLC)
Company Stockholder Representative. (a) By their execution of the Letter of Transmittal, approval of the Merger and adoption of this Agreement and/or their acceptance of any consideration pursuant to this Agreement or the CVR Agreement, the Pre-Reverse Split Company Stockholders and the Company Stockholders hereby irrevocably (subject only to Section 3.9(e)) appoint Xxxx Xxxxxxx shall be the Company Stockholder Representative and as the representative, such shall serve as and have all powers as agent and attorney-in-fact of each Company Stockholder, for and agent on behalf of the Pre-Reverse Split such Company Stockholders and the Company Stockholders for all purposes in connection with the transactions contemplated by this Agreement and any other agreements ancillary hereto and in any litigation or arbitration involving this Agreement. In connection therewith, the Company Stockholder Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Company Stockholder Representative shall deem necessary or appropriate, and shall have the power and authority to:
Stockholders: (i) act for some or all of the Pre-Reverse Split Company Stockholders to give and the Company Stockholders with regard to all matters pertaining to this Agreement or any other agreements ancillary hereto;
receive notices and communications; (ii) act for the Pre-Reverse Split Company Stockholders and the Company Stockholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Company Stockholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement, including delivering any update have authority to or correction, amendment or modification of the Closing Date Allocation Schedule permitted by this Agreement;
(iv) do or refrain from doing, on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders, any further act or deed that the Company Stockholder Representative deems necessary or appropriate in the Company Stockholder Representative’s discretion relating to the subject matter of this Agreement, in each case as fully and completely as the Pre-Reverse Split Company Stockholders and the Company Stockholders could do if personally present;
(v) give and receive all notices required to be given or received by the Pre-Reverse Split Company Stockholders and the Company Stockholders under this Agreement;
(vi) agree to, negotiate, enter into settlements and compromises and/or of, and demand mediation and arbitration and comply with arbitration orders of courts and awards and court orders of arbitrators with respect to claims for indemnification any disputes involving any Parent Indemnity Claims made by Buyer under Article XIParent and the retaining of any portion of the Escrow Fund by Parent thereunder; and
(viiiii) receive service of process to litigate, mediate, arbitrate, defend, enforce or to take any other actions and execute any documents that the Company Stockholder Representative deems advisable in connection with enforcing any claims rights or obligations or defending any claim or action under this Agreement or the Escrow Agreement on behalf of the Company Stockholders or their property or against any ancillary agreement person who has caused a loss or damage to the Company Stockholders; (iv) to sign receipts, consents, or other documents to effect the transactions contemplated hereby; (v) to have the authority to withhold or direct the disposition of the Escrow Fund pursuant to Section 3.6(e); and (vi) to take any and all actions necessary or appropriate in the judgment of the Company Stockholder Representative for the accomplishment of the foregoing. If Xxxx Xxxxxxx ceases to act as Company Stockholder Representative for any reason, such Company Stockholder Representative or his agent shall notify Parent of such Company Stockholder Representative’s intent to resign as Company Stockholder Representative, and the Company Stockholders entitled to receive a majority of the Escrow Shares shall, by written notice to Parent, appoint a successor Company Stockholder Representative within thirty (30) days. Notice or communications to or from any Company Stockholder Representative shall constitute notice to or from each of the Company Stockholders.
(b) All decisions and actions Subject to Section 3.6(a), in the event of (i) the death or permanent disability of the Company Stockholder Representative, (ii) his, her or its resignation as a Company Stockholder Representative, or (iii) the removal of the Company Stockholder Representative on behalf by Company Stockholders entitled to receive a majority of the Pre-Reverse Split Escrow Shares, a successor Company Stockholders and Stockholder Representative shall be elected by the Company Stockholders entitled to receive a majority of the Escrow Shares. Each successor Company Stockholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Company Stockholder Representative, and the term “Company Stockholder Representative” as used herein shall be deemed to be facts ascertainable outside of this Agreement and shall be binding upon all Pre-Reverse Split Company Stockholders and Company Stockholders, and no Pre-Reverse Split include successor Company Stockholder or Company Stockholder shall have the right to object, dissent, protest or otherwise contest the sameRepresentatives.
(c) At the First Effective Time, Buyer shall pay an amount in cash equal to $25,000 (the “Company Stockholder Representative Expense Amount”) to the Company Stockholder Representative, which Company Stockholder Representative Expense Amount shall be held by the Company Stockholder Representative in a segregated account (the “Company Stockholder Representative Expense Fund”). The Company Stockholder Representative Expense Fund will be used solely for the purposes of paying directly, or reimbursing the Company Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Company Stockholders will not receive any interest or earnings on the Company Stockholder Representative Expense Fund and irrevocably transfer and assign to the Company Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Company Stockholder Representative will not be liable for any loss of principal of the Company Stockholder Representative Expense Fund other than as a result of its gross negligence or willful misconduct. The Company Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Company Stockholder Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing. In no event shall Buyer or the Final Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse the Company Stockholder Representative for any expenses payable from the Company Stockholder Representative Expense Fund. Upon the determination of the Company Stockholder Representative that retaining any portion of the Company Stockholder Representative Expense Fund is no longer necessary, or as directed by the advisory committee to the Company Stockholder Representative as set forth in the engagement letter between the Company and the Company Stockholder Representative, the Company Stockholder Representative shall deliver any then remaining portion of the Company Stockholder Representative Expense Fund to Buyer, after which Buyer shall, subject to Section 3.14, promptly issue to each Company Stockholder a number of Buyer Ordinary Shares with a value, based on the Buyer Share Value, equal to such Company Stockholder’s Pro Rata Share of such remaining portion of the Company Stockholder Representative Expense Fund.
(d) The Company Stockholder Representative shall act for the Pre-Reverse Split Company Stockholders and the Company Stockholders on all of the matters set forth in this Agreement and any other agreements ancillary hereto in the manner the Company Stockholder Representative believes to be in the best interest of the Pre-Reverse Split Company Stockholders and the Company Stockholders. The Company Stockholder Representative is authorized to act on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders notwithstanding any dispute or disagreement among the Pre-Reverse Split Company Stockholders or the Company Stockholders. In taking any action as Company Stockholder Representative, the Company Stockholder 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 Stockholder Representative reasonably believes to be authorized thereunto. The Company Stockholder Representative may, in all questions arising hereunderunder this Agreement and the Escrow Agreement, rely on the advice of counsel, and shall not be liable to the Company Stockholders for any action taken or not taken as a Company Stockholder Representative in the absence of such Company Stockholder Representative’s willful misconduct.
(d) A decision, act, consent or instruction of the Company Stockholder Representative shall constitute a decision of all the Company Stockholders, and shall be final, binding and conclusive upon each of the Company Stockholders, and Parent and the Company may rely upon any decision, act, consent or instruction of the Company Stockholder Representative as being the decision, act, consent or instruction of each and all of the Company Stockholders. Parent and the Company are relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction. Although the Company Stockholder Representative shall not be liable obligated to obtain instructions from the Company Stockholders prior to any Pre-Reverse Split decision, act, consent or instruction, if, and to the extent that, the Company Stockholder or Representative receives any written instructions from the Company Stockholders entitled to receive a majority of the Escrow Shares held by the Escrow Agent, the Company Stockholder for anything doneRepresentative shall comply with such instructions.
(e) The Company Stockholders shall share, omitted on a pro rata basis in relation to their holdings of Company Common Stock, the professional fees and expenses of any attorney, accountants or suffered in good faith other advisors retained by the Company Stockholder Representative based on such advice. The Company Stockholder Representative undertakes to perform such duties and only such duties in connection with any action taken or not taken as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Company Stockholder Representative. The Company Stockholder Representative shall not have any liability to any of the Company Stockholders for any act done or omitted hereunder as Company Stockholder Representative while acting in good faith and pursuant to the engagement letter between the Company and the a Company Stockholder Representative. The Company Stockholder Representative shall be indemnified by the Pre-Reverse Split Company Stockholders entitled to request in writing and the Company Stockholders from and against any loss, liability or expense incurred in good faith on the part of the Company Stockholder Representative and arising out of or in connection with the acceptance or administration of the Company Stockholder Representative’s duties hereunder, in each case as such loss, liability or expense is suffered or incurred. Any such claim for indemnification Escrow Agent shall be satisfied first withhold from any then available portion of the remaining Company Stockholder Representative Expense Fund and, if such amount is insufficient to satisfy any such loss, liability or expense, from the first proceeds from any escrow payments to be made by Buyer pursuant to this Agreement or the CVR Agreement otherwise available for distribution to the Pre-Reverse Split Company Stockholders and/or the Company Stockholders or by a claim against the Company Stockholders (with each Company Stockholder liable for the Pro Rata Share of any such claim that is represented by such Company Stockholder’s Company Capital Stock). Notwithstanding anything in this Agreement to the contrary, nothing herein shall relieve the Company Stockholders from their obligation to promptly pay such losses, liabilities and expenses as they are suffered or incurred, nor does it prevent the Company Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Company Stockholder Representative be required to advance its own funds on behalf of the Company Stockholders 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 Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Company Stockholder Representative under this section. The foregoing indemnities will survive the ClosingStockholders, the resignation upon such request, amounts payable to attorneys, accountants or removal of the Company Stockholder Representative other advisors, which amounts shall be paid to such individuals or the termination of this Agreement.
(e) In the event the Company Stockholder Representative becomes unable to perform the Company Stockholder Representative’s responsibilities hereunder or resigns from such position, the Company Stockholder Representative shall select another representative to fill the vacancy of the Company Stockholder Representative, and upon such substituted representative’s written agreement to assume as set forth in the rights and responsibilities of the Company Stockholder Representative hereunder, such substituted representative shall be deemed to be the Company Stockholder Representative for all purposes of this Agreement. Except as contemplated request submitted by the previous sentence, the Company Stockholder Representative may be removed only upon delivery of written notice to Bxxxx signed by Company Stockholders who, as of immediately prior to the First Effective Time, held a majority (by voting power) of the then outstanding shares of Company Capital Stock; provided that no such removal shall be effective until such time as a successor Company Stockholder Representative shall have been validly appointed hereunder. The Company Stockholder Representative shall provide Buyer prompt written notice of any replacement of the Company Stockholder Representative, including the identity and address of the new Company Stockholder Representative. Upon any replacement of the Company Stockholder Representative, the Company Stockholder Representative being replaced shall transfer to the new Company Stockholder Representative the balance of any unexpended Company Stockholder Representative Expense Fund.
(f) The Company Stockholder 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 Stockholder 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 Stockholder Representative without a breach of its obligations under this Section 3.9(f)), (ii) as required by applicable Law, (iii) to employees, advisors, agents or consultants of the Company Stockholder Representative (if applicable) and to the Company Stockholders, 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) is in connection with, and only to the extent required for, enforcement of rights or defense of claims (including, in each case, on behalf of the Company Stockholders) under this Agreement and the transactions contemplated hereby and thereby.
(g) For all purposes of this Agreement:
(i) Buyer shall be entitled to rely conclusively on the instructions and decisions of the Company Stockholder Representative as to the settlement of any disputes or claims under this Agreement, or any ancillary agreement contemplated hereby, or any other actions required or permitted to be taken by the Company Stockholder Representative hereunder, and no party hereunder or any Company Stockholder shall have any cause of action against Buyer for any action taken by Buyer in reliance upon the instructions or decisions of the Company Stockholder Representative;
(ii) the provisions of this Section 3.9 are independent and severable, are irrevocable (subject only to Section 3.9(e)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement;
(iii) except as specifically set forth herein, no Company Stockholder will have any right to bring any claim, cause of action, objection or complaint except through the Company Stockholder Representative, and the Company Stockholder Representative shall have the sole authority to act for, and enforce the rights of, all Company Stockholders in connection with this Agreement and the transactions contemplated hereby; and
(iv) the provisions of this Section 3.9 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of each applicable Company Stockholder hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
Appears in 1 contract
Company Stockholder Representative. (a) By their execution Pursuant to the Letters of Transmittal executed and delivered by the Letter of TransmittalCompany Holders, approval and by consummation of the Merger and adoption of this Agreement and/or their acceptance by receiving the benefits thereof, including any consideration payable hereunder, and without any further action of any consideration pursuant to this Agreement of the Company Holders or the CVR AgreementCompany, the Pre-Reverse Split Company Stockholders and each of the Company Stockholders Holders hereby irrevocably (subject only to Section 3.9(e)) appoint appoints the Company Stockholder Representative as of the Closing as its representative, exclusive agent and true and lawful attorney-in-fact and agent in respect of the Pre-Reverse Split Company Stockholders and the Company Stockholders for all purposes matters arising under or in connection with the transactions contemplated by this Agreement and any other agreements ancillary hereto and in any litigation or arbitration involving this Agreement. In connection therewith, the Company Stockholder Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Company Stockholder Representative shall deem necessary or appropriate, and shall have the power and authority to:
(i) act for some or all of the Pre-Reverse Split Company Stockholders and the Company Stockholders with regard to all matters pertaining to this Agreement or any other agreements ancillary hereto;
(ii) act for the Pre-Reverse Split Company Stockholders and the Company Stockholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Company Stockholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement, including delivering any update to or correction, amendment or modification of the Closing Date Allocation Schedule permitted by this Agreement;
(iv) do or refrain from doing, on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders, any further act or deed that the Company Stockholder Representative deems necessary or appropriate in the Company Stockholder Representative’s discretion relating to the subject matter of this Agreement, in each case as fully and completely as the Pre-Reverse Split Company Stockholders and the Company Stockholders could do if personally present;
(v) give and receive all notices required to be given or received by the Pre-Reverse Split Company Stockholders and the Company Stockholders under this Agreement;
(vi) 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 Buyer under Article XI; and
(vii) receive service of process in connection with any claims under this Agreement or any ancillary agreement contemplated hereby.
(b) All decisions and actions of the Company Stockholder Representative on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders shall be deemed to be facts ascertainable outside of this Agreement and shall be binding upon all Pre-Reverse Split Company Stockholders and Company Stockholders, and no Pre-Reverse Split Company Stockholder or Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) At the First Effective Time, Buyer shall pay an amount in cash equal to $25,000 (the “Company Stockholder Representative Expense Amount”) to the Company Stockholder Representative, which Company Stockholder Representative Expense Amount shall be held by the Company Stockholder Representative in a segregated account (the “Company Stockholder Representative Expense Fund”). The Company Stockholder Representative Expense Fund will be used solely for the purposes of paying directly, or reimbursing the Company Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Company Stockholders will not receive any interest or earnings on hereto (including Article IX, this Article X and Section 6.05 of this Agreement), and the Company Stockholder Representative Expense Fund is and irrevocably transfer shall be authorized by each Company Holder to act, or refrain from acting, with respect to any actions or deeds to be taken by or on behalf of any Company Holder, including to incur and assign pay expenses and to enforce any rights granted to any Company Holder under such provisions, in each case as the Company Stockholder Representative any ownership right that they may otherwise have had believes is necessary, desirable or appropriate in any its sole discretion under such interest or earnings. The Company Stockholder Representative will not be liable provisions, for any loss of principal and on behalf of the Company Stockholder Representative Expense Fund other than as a result of its gross negligence or willful misconductHolders. The Company Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in Notwithstanding the event of bankruptcy. For tax purposes, the Company Stockholder Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing. In no event shall Buyer or the Final Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse the Company Stockholder Representative for any expenses payable from the Company Stockholder Representative Expense Fund. Upon the determination of the Company Stockholder Representative that retaining any portion of the Company Stockholder Representative Expense Fund is no longer necessary, or as directed by the advisory committee to the Company Stockholder Representative as set forth in the engagement letter between the Company and the Company Stockholder Representativeforegoing, the Company Stockholder Representative shall deliver any then remaining portion of the Company Stockholder Representative Expense Fund to Buyer, after which Buyer shall, subject to Section 3.14, promptly issue to each Company Stockholder a number of Buyer Ordinary Shares with a value, based on the Buyer Share Value, equal to such Company Stockholder’s Pro Rata Share of such remaining portion of the Company Stockholder Representative Expense Fund.
(d) The Company Stockholder Representative shall act for the Pre-Reverse Split Company Stockholders and the Company Stockholders on all of the matters set forth in this Agreement and any other agreements ancillary hereto in the manner the Company Stockholder Representative believes to be in the best interest of the Pre-Reverse Split Company Stockholders and the Company Stockholders. The Company Stockholder Representative is authorized have no obligation to act on behalf of the Pre-Reverse Split Company Stockholders Holders, except as expressly provided herein, and for purposes of clarity, there are no obligations of the Company Stockholders notwithstanding Stockholder Representative in any dispute or disagreement among the Pre-Reverse Split Company Stockholders Ancillary Agreement, schedule, exhibit or the Schedules under such provisions, to act for and on behalf of the Company StockholdersHolders. In taking The Company Holders and such Company Holders’ successors shall be bound by all such actions taken by the Company Stockholder Representative under this Agreement as if expressly confirmed and ratified in writing by such Company Holders, and all defenses which may be available to any Company Holder to contest, negate or disaffirm the action of the Company Stockholder Representative taken in good faith under this Agreement are waived and no Company Holder shall be permitted to take any such actions. The powers, immunities and rights to indemnification granted to the Company Stockholder Representative hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Company Holder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Company Holder of the whole or any fraction of his, her or its interest in the Sephora Holdback Consideration and/or Additional Consideration, and no Company Holder shall be permitted to take any such actions. The Company Stockholder Representative may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action as taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Company Stockholder RepresentativeRepresentative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any Ancillary Agreement. Without limiting the generality of the foregoing, the Company Stockholder Representative may shall have the full power and authority to interpret all the terms and provisions of Article IX, this Article X and Section 6.05 on behalf of the Company Holders. Acquiror shall be entitled to rely conclusivelyon all statements, without any further inquiry representations, decisions of, and actions taken or investigationomitted to be taken by, upon any certification or confirmation, oral or written, given by any Person whom the Company Stockholder Representative reasonably believes relating to be authorized thereuntoArticle IX, this Article X and Section 6.05. The Company Stockholder Representative mayshall be entitled to: (i) rely upon the Spreadsheet, in all questions arising hereunder, (ii) rely on the advice of counselupon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Holder or other party. The Company Stockholder Representative may resign at any time. The immunities and rights to indemnification shall survive the resignation of the Company Stockholder Representative and the Closing.
(b) The Company Holders acknowledge that the Company Stockholder Representative is serving as the Company Stockholder Representative for purposes of administrative convenience, and is not personally liable for any of the obligations of the Company or any Company Holders. The Company Stockholder Representative shall not be liable to any Pre-Reverse Split Company Stockholder or Company Stockholder for anything done, omitted or suffered in good faith by the Company Stockholder Representative based on such advice. The Company Stockholder 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 Stockholder Representative. The Company Stockholder Representative shall not have any liability to any of the Company Stockholders Holder for any action or failure to act done or omitted hereunder as Company Stockholder Representative while acting in good faith and pursuant to the engagement letter between the Company and the Company Stockholder Representative. The Company Stockholder Representative shall be indemnified by the Pre-Reverse Split Company Stockholders and the Company Stockholders from and against any loss, liability or expense incurred in good faith on the part of the Company Stockholder Representative and arising out of or in connection with the acceptance or administration of the Company Stockholder Representative’s responsibilities hereunder, unless and only to the extent such action or failure to act constitutes gross negligence or willful misconduct. The Company Stockholder Representative shall not be liable to any Company Holder for any action or omission pursuant to the advice of counsel. The Company Holders will indemnify, defend and hold harmless the Company Stockholder Representative (and any advisory committee nominated to exercise discretionary decision-making authority over the actions of the Company Stockholder Representative with respect to its obligations under this Agreement) from and against any and all losses, claims, damages, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines, amounts paid in settlement (collectively, the “Representative Expenses”) arising out of or in connection with the acceptance or administration of its duties hereunder, in each case as such loss, liability or expense Representative Expense is suffered or incurred. Any ; provided that in the event that any such claim for indemnification shall be satisfied first from any then available portion Representative Expense is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the remaining Company Stockholder Representative or advisory committee, the Company Stockholder Representative or advisory committee, as the case may be, will reimburse the Company Holders the amount of such indemnified Representative Expense Fund andto the extent attributable to such gross negligence or willful misconduct. Such Representative Expenses may be recovered from (i) the Expense Fund, if such amount is insufficient (ii) any distribution of the Sephora Holdback Consideration otherwise distributable to satisfy the Company Holders at the time of distribution, (iii) any such lossdistribution of the Additional Consideration otherwise distributable to the Company Holders at the time of distribution, liability or expense, from (iv) any other funds that become payable to the first proceeds from any payments to be made by Buyer pursuant to Company Holders under this Agreement or the CVR Agreement at such time as such amounts would otherwise available for distribution be distributable to the Pre-Reverse Split Company Stockholders and/or the Company Stockholders or by a claim against Holders and (v) directly from the Company Stockholders (with each but not, for avoidance of doubt, any Company Optionholder); provided, that while the Company Stockholder liable for Representative may be paid from the Pro Rata Share aforementioned sources of any such claim that is represented by such Company Stockholder’s Company Capital Stock). Notwithstanding anything in funds, this Agreement to the contrary, nothing herein shall does not relieve the Company Stockholders Holders from their obligation to promptly pay such losses, liabilities and expenses Representative Expenses as they are suffered or incurred, nor does it prevent the Company Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Company Stockholder Representative be required to advance its own funds on behalf of the Company Stockholders 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 Stockholders Holders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Company Stockholder Representative under hereunder. The Company Holders acknowledge that neither the Company Stockholder Representative nor its advisory committee shall be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this sectionAgreement or the transactions contemplated hereby or thereby. Furthermore, neither the Company Stockholder Representative nor its advisory committee (in its capacity as such) shall be required to take any action unless the Company Stockholder Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Company Stockholder Representative against the costs, expenses and liabilities which may be incurred by the Company Stockholder Representative in performing such actions. The foregoing indemnities will survive the Closing, the resignation or removal of the Company Stockholder Representative or its advisory committee or the termination of this Agreement.
(ec) In Upon the event Closing, the Company will wire an amount of $5,000 (the “Expense Fund”) to the Company Stockholder Representative, which shall be held by the Company Stockholder Representative becomes unable to perform in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Company Stockholder Representative’s responsibilities hereunder Representative for any Representative Expenses incurred pursuant to this Agreement, or resigns (ii) as otherwise determined by the Company Holders. The Company Stockholder Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Company Holders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Company Stockholder Representative any ownership right that they may otherwise have had in such interest or earnings. The Company Stockholder Representative may contribute funds to the Expense Fund from such positionany consideration otherwise distributable to the Company Holders. As soon as reasonably determined by the Company Stockholder Representative that the Expense Fund is no longer required to be withheld, the Company Stockholder Representative shall select another representative cause (at the Company Stockholders’ expense) the disbursement of any remaining balance of the Expense Fund to fill the vacancy Company Stockholders (according to the Ownership Allocation), except in the case of payments to employees or former employees of the Company Stockholder Representativefor which employment tax withholding is required, which such amounts shall be delivered to Acquiror or the Surviving Company and upon such substituted representativepaid through Acquiror's or Surviving Company’s written agreement to assume the rights and responsibilities of payroll processing service or system. The parties agree that the Company Stockholder Representative hereunder, such substituted representative shall be deemed to be the Company Stockholder Representative for all purposes of this Agreement. Except as contemplated by the previous sentence, the Company Stockholder Representative may be removed only upon delivery of written notice to Bxxxx signed by Company Stockholders who, as of immediately prior to the First Effective Time, held a majority (by voting power) of the then outstanding shares of Company Capital Stock; provided that no such removal shall be effective until such time as a successor Company Stockholder Representative shall have been validly appointed hereunder. The Company Stockholder Representative shall provide Buyer prompt written notice of any replacement of the Company Stockholder Representative, including the identity and address of the new Company Stockholder Representative. Upon any replacement of the Company Stockholder Representative, the Company Stockholder Representative being replaced shall transfer to the new Company Stockholder Representative the balance of any unexpended Company Stockholder Representative Expense Fund.
(f) The Company Stockholder Representative agrees is 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 Stockholder 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 Stockholder Representative without a breach of its obligations under this Section 3.9(f)), (ii) as required by applicable Law, (iii) to employees, advisors, agents or consultants of the Company Stockholder Representative (if applicable) and to the Company Stockholders, 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) is in connection with, and only to the extent required for, enforcement of rights or defense of claims (including, in each case, on behalf of the Company Stockholders) under this Agreement and the transactions contemplated hereby and thereby.
(g) For all purposes of this Agreement:
(i) Buyer shall be entitled to rely conclusively on the instructions and decisions of the Company Stockholder Representative as to the settlement of any disputes or claims under this Agreement, or any ancillary agreement contemplated hereby, or any other actions required or permitted to be taken by the Company Stockholder Representative hereunder, and no party hereunder or any Company Stockholder shall have any cause of action against Buyer responsible for any action taken by Buyer in reliance upon the instructions tax reporting or decisions of the Company Stockholder Representative;
(ii) the provisions of this Section 3.9 are independent and severable, are irrevocable (subject only to Section 3.9(e)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have withholding in connection with the transactions contemplated distribution of the Expense Fund. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by this Agreement;
(iii) except as specifically set forth herein, no Company Stockholder will have any right to bring any claim, cause of action, objection or complaint except through the Company Stockholder Representative, and Stockholders at the Company Stockholder Representative shall have the sole authority to act for, and enforce the rights of, all Company Stockholders in connection with this Agreement and the transactions contemplated hereby; and
(iv) the provisions time of this Section 3.9 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of each applicable Company Stockholder hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwiseClosing.
Appears in 1 contract
Company Stockholder Representative. (a) By their execution Each Company Stockholder and Participating Optionholder, by virtue of the Letter of Transmittalhis, her or its approval of the Merger and adoption of this Agreement and execution of a letter of transmittal and/or their acceptance of any consideration pursuant to this Agreement or contemplated by Article III, irrevocably nominates, constitutes and appoints the CVR Agreement, the Pre-Reverse Split Company Stockholders and the Company Stockholders hereby irrevocably (subject only to Section 3.9(e)) appoint the Company Stockholder Representative as the representativeagent, agent for service of process and true and lawful attorney-in-fact of such Company Stockholder or Participating Optionholder, as applicable, with full power of substitution, to act in the name, place and agent stead of such Company Stockholder or Participating Optionholder, as applicable, with respect to this Agreement and the Escrow Agreement and the taking by the Representative of any and all actions (whether prior to, contemporaneously with, or after such nomination, constitution and appointment) and the making of any decisions required or permitted to be taken or made by the Representative under this Agreement or the Escrow Agreement, including the exercise of the Pre-Reverse Split power to execute, deliver, acknowledge, certify and file (in the name of any or all of the Company Stockholders and Participating Optionholders or otherwise) any and all documents and to take any and all actions that the Representative may, in its sole discretion, determine to be necessary, desirable or appropriate on or after the date of this Agreement, including the power to act on behalf of any Company Stockholders for all purposes Stockholder or Participating Optionholder in any dispute, litigation or arbitration involving this Agreement or the Escrow Agreement and the power to receive on behalf of, and to distribute (after payment from the Representative Holdback Amount or otherwise of any unpaid expenses chargeable to a Company Stockholder or Participating Optionholder in connection with the transactions contemplated by this Agreement and any other agreements ancillary hereto and in any litigation or arbitration involving this the Escrow Agreement. In connection therewith), the all amounts payable to such Company Stockholder Representative is authorized to do or refrain from doing all further acts and thingsParticipating Optionholder, and to execute all such documents as applicable, under the Company Stockholder Representative shall deem necessary or appropriate, and shall have the power and authority to:
(i) act for some or all terms of the Pre-Reverse Split Company Stockholders this Agreement and the Company Stockholders with regard to all matters pertaining to this Agreement or any other agreements ancillary hereto;
(ii) act for the Pre-Reverse Split Company Stockholders and the Company Stockholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Company Stockholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Escrow Agreement, including delivering any update to or correction, amendment or modification of the Closing Date Allocation Schedule permitted by this Agreement;
(iv) do or refrain from doing, on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders, any further act or deed that the Company Stockholder Representative deems necessary or appropriate in the Company Stockholder Representative’s discretion relating to the subject matter of this Agreement, in each case as fully and completely as the Pre-Reverse Split Company Stockholders and the Company Stockholders could do if personally present;
(v) give and receive all notices required to be given or received by the Pre-Reverse Split Company Stockholders and the Company Stockholders under this Agreement;
(vi) 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 Buyer under Article XI; and
(vii) receive service of process in connection with any claims under this Agreement or any ancillary agreement contemplated hereby.
(b) All decisions and actions of notices delivered by the Company Stockholder Parent or the Acquired Companies following the Closing to the Representative on behalf of (whether pursuant to this Agreement or otherwise) shall constitute notice to the Pre-Reverse Split Company Stockholders and the Company Stockholders shall be deemed to be facts ascertainable outside of this Agreement and shall be binding upon all Pre-Reverse Split Company Stockholders and Company Stockholders, and no Pre-Reverse Split Company Stockholder or Company Stockholder shall have the right to object, dissent, protest or otherwise contest the sameParticipating Optionholders.
(c) At The power of attorney granted in this Section 11.16: (i) is coupled with an interest and is irrevocable; and (ii) shall survive the First Effective Timedeath, Buyer shall pay an amount in cash equal to $25,000 (the “Company Stockholder Representative Expense Amount”) to the Company Stockholder Representativeincapacity, which Company Stockholder Representative Expense Amount shall be held by the Company Stockholder Representative in a segregated account (the “Company Stockholder Representative Expense Fund”). The Company Stockholder Representative Expense Fund will be used solely for the purposes bankruptcy, dissolution or liquidation of paying directly, or reimbursing the Company Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Company Stockholders will not receive any interest or earnings on the Company Stockholder Representative Expense Fund and irrevocably transfer and assign to the Company Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Company Stockholder Representative will not be liable for any loss of principal of the Company Stockholder Representative Expense Fund other than as a result of its gross negligence or willful misconduct. The Company Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Company Stockholder Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing. In no event shall Buyer or the Final Surviving Corporation (or any of their respective Affiliates) be obligated to reimburse the Company Stockholder Representative for any expenses payable from the Company Stockholder Representative Expense Fund. Upon the determination of the Company Stockholder Representative that retaining any portion of the Company Stockholder Representative Expense Fund is no longer necessary, or as directed by the advisory committee to the Company Stockholder Representative as set forth in the engagement letter between the Company and the Company Stockholder Representative, the Company Stockholder Representative shall deliver any then remaining portion of the Company Stockholder Representative Expense Fund to Buyer, after which Buyer shall, subject to Section 3.14, promptly issue to each Company Stockholder a number of Buyer Ordinary Shares with a value, based on and Participating Optionholder and (iii) may be delegated by the Buyer Share Value, equal to such Company Stockholder’s Pro Rata Share of such remaining portion of the Company Stockholder Representative Expense FundRepresentative.
(d) The Without limiting the generality of Section 11.16(a) and notwithstanding anything to the contrary contained in this Agreement or the Escrow Agreement, Parent shall be entitled to deal exclusively with the Representative on all matters described in Section 11.16(a), and each Parent Indemnified Party shall be entitled to deal exclusively with the Representative on all matters relating to Section 7.10 or Article X, and each of them shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Company Stockholder or Participating Optionholder by the Representative, and on any other action taken or purported to be taken by the Representative on behalf of any Company Stockholder or Participating Optionholder by the Representative, as fully binding upon such Company Stockholder or Participating Optionholder.
(e) The Representative may at any time designate a replacement Representative and each Company Stockholder and Participating Optionholder, by virtue of his, her or its approval of this Agreement, hereby consents to such replacement Representative. If the Representative shall act for die, become disabled, be dissolved or otherwise be unable to fulfill its responsibilities as representative of the Pre-Reverse Split Company Stockholders and Participating Optionholders, then the Company Stockholders and Participating Optionholders shall, by majority vote (based on all a number of the matters set forth in this Agreement and any other agreements ancillary hereto in the manner the Company Stockholder Representative believes to be in the best interest votes constituting at least a majority of the Pre-Reverse Split Company Stockholders Closing Percentage) within thirty (30) days after such death, disability or dissolution, appoint a successor representative and, promptly thereafter, shall notify Parent of the identity of such successor. Any such successor shall become the “Representative” for purposes of this Agreement.
(f) No bond shall be required of the Representative and the Company StockholdersRepresentative shall receive no compensation for its services. The Company Stockholder Representative is authorized to act on behalf of the Pre-Reverse Split Company Stockholders and the Company Stockholders notwithstanding any dispute or disagreement among the Pre-Reverse Split Company Stockholders or the Company Stockholders. In taking any action as Company Stockholder Representative, the Company Stockholder 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 Stockholder Representative reasonably believes to be authorized thereunto. The Company Stockholder Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Company Stockholder Representative shall not be liable to any Pre-Reverse Split Company Stockholder or Company Stockholder for anything done, omitted or suffered in good faith by the Company Stockholder Representative based on such advice. The Company Stockholder 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 Stockholder Representative. The Company Stockholder Representative shall not have any liability to any of the Company Stockholders Participating Optionholder for any act done or omitted hereunder as Company Stockholder Representative while acting in good faith and pursuant in the exercise of its reasonable business judgment with respect to the engagement letter between the Company and the Company Stockholder Representative. The Company Stockholder Representative shall be indemnified by the Pre-Reverse Split Company Stockholders and the Company Stockholders from and against any loss, liability or expense incurred in good faith on the part of the Company Stockholder Representative and matter arising out of or in connection with the acceptance or administration of its duties hereunder (it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith), and shall further not be liable to Parent or the Acquired Companies for any act done or omitted hereunder as Representative absent bad faith or fraud on the part of the Representative. The Representative shall be entitled to be indemnified by the Company Stockholder Representative’s duties hereunderStockholders and Participating Optionholders, severally and not jointly, in each case as accordance with such Person’s Pre-Closing Percentage, for any loss, liability or expense is suffered incurred on the part of the Representative with respect to any matter arising out of or incurredin connection with the acceptance or administration of its duties hereunder. Any such claim for indemnification The Representative shall be satisfied first entitled to recover from any then available portion of the remaining each Company Stockholder and Participating Optionholder, severally and not jointly, in accordance with such Person’s Pre-Closing Percentage, any out-of-pocket costs and expenses reasonably incurred by the Representative Expense Fund and, if such amount is insufficient to satisfy any such loss, liability or expense, from in good faith in connection with actions taken by the first proceeds from any payments to be made by Buyer Representative pursuant to this Agreement or the CVR Escrow Agreement otherwise available for distribution to (including the Pre-Reverse Split Company Stockholders and/or hiring of legal counsel and the Company Stockholders or by a claim against the Company Stockholders (with each Company Stockholder liable for the Pro Rata Share incurring of legal fees and costs), and may offset any such claim that is represented by such Company Stockholder’s Company Capital Stock). Notwithstanding anything in this Agreement to the contrary, nothing herein shall relieve the Company Stockholders from their obligation to promptly pay such losses, liabilities and expenses as they are suffered or incurred, nor does it prevent the Company Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Company Stockholder Representative be required to advance its own funds amounts received on behalf of the Company Stockholders 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 Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Company Stockholder Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Company Stockholder Representative or the termination of this Agreement.
(e) In the event the Company Stockholder Representative becomes unable to perform the Company Stockholder Representative’s responsibilities hereunder or resigns from such position, the Company Stockholder Representative shall select another representative to fill the vacancy of the Company Stockholder Representative, and upon such substituted representative’s written agreement to assume the rights and responsibilities of the Company Stockholder Representative hereunder, such substituted representative shall be deemed to be the Company Stockholder Representative for all purposes of this Agreement. Except as contemplated by the previous sentence, the Company Stockholder Representative may be removed only upon delivery of written notice to Bxxxx signed by Company Stockholders who, as of immediately prior to the First Effective Time, held a majority (by voting power) of the then outstanding shares of Company Capital Stock; provided that no such removal shall be effective until such time as a successor Company Stockholder Representative shall have been validly appointed hereunder. The Company Stockholder Representative shall provide Buyer prompt written notice of any replacement of the Company Stockholder Representative, including the identity and address of the new Company Stockholder Representative. Upon any replacement of the Company Stockholder Representative, the Company Stockholder Representative being replaced shall transfer to the new Company Stockholder Representative the balance of any unexpended Company Stockholder Representative Expense Fund.
(f) The Company Stockholder 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 Stockholder Representative Persons 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 Stockholder Representative without a breach of its obligations under this Section 3.9(f)), (ii) as required by applicable Law, (iii) to employees, advisors, agents or consultants of the Company Stockholder Representative (if applicable3.04(b) and Section 10.11(c) in order to the Company Stockholders, in each case who have a need to know satisfy such information, and further provided that such persons are subject to confidentiality obligations with respect thereto, or (iv) is in connection with, and only to the extent required for, enforcement of rights or defense of claims (including, in each case, on behalf of the Company Stockholders) under this Agreement and the transactions contemplated hereby and thereby.
(g) For all purposes of this Agreement:
(i) Buyer shall be entitled to rely conclusively on the instructions and decisions of the Company Stockholder Representative as to the settlement of any disputes or claims under this Agreement, or any ancillary agreement contemplated hereby, or any other actions required or permitted to be taken by the Company Stockholder Representative hereunder, and no party hereunder or any Company Stockholder shall have any cause of action against Buyer for any action taken by Buyer in reliance upon the instructions or decisions of the Company Stockholder Representative;
(ii) the provisions of this Section 3.9 are independent and severable, are irrevocable (subject only to Section 3.9(e)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement;
(iii) except as specifically set forth herein, no Company Stockholder will have any right to bring any claim, cause of action, objection or complaint except through the Company Stockholder Representative, and the Company Stockholder Representative shall have the sole authority to act for, and enforce the rights of, all Company Stockholders in connection with this Agreement and the transactions contemplated hereby; and
(iv) the provisions of this Section 3.9 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of each applicable Company Stockholder hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.payment obligations. * * * * *
Appears in 1 contract
Samples: Merger Agreement (DST Systems Inc)
